1 (Slip Opinion) OCTOBER TERM, 2023

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

## SUPREME COURT OF THE UNITED STATES

Syllabus

TRUMP v . UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 23–939. Argued April 25, 2024—Decided July 1, 2024

A federal grand jury indicted former President Donald J. Trump on four

counts for conduct that occurred during his Presidency following the November 2020 election. The indictment alleged that after losing that election, Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certi

fying of the election results. Tr ump moved to dismiss the indictment based on Presidential immunity, arguing that a President has absolute immunity from criminal prosecution for actions performed within the outer perimeter of his official resp onsibilities, and that the indict

ment’s allegations fell within the core of his official duties. The District Court denied Trump’s motion to dismiss, holding that former Presi

dents do not possess federal criminal immunity for any acts. The D. C. Circuit affirmed. Both the District Court and the D. C. Circuit de

clined to decide whether the indict ed conduct involved official acts.
Held : Under our constitutional structure of separated powers, the nature

of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclu

sive constitutional authority. And he is entitled to at least presump

tive immunity from prosecution for a ll his official acts. There is no immunity for unofficial acts. Pp. 5–43. (a) This case is the first criminal prosecution in our Nation’s history of a former President for actions ta ken during his Presidency. Deter

mining whether and under what ci rcumstances such a prosecution may proceed requires careful assessme nt of the scope of Presidential power under the Constitution. The na ture of that power requires that a former President have some imm unity from criminal prosecution for official acts during his tenure in office. At least with respect to the2 TRUMP v. UNITED STATES

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President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remainin g official actions, he is entitled to at least presumptive immunity. Pp. 5–15. (1) Article II of the Constitution vests “executive Power” in “a President of the United States of Am erica.” §1, cl. 1. The President has duties of “unrivaled gravity and breadth.” Trump v. Vance , 591 U. S. 786, 800. His authority to act necessarily “stem[s] either from an act of Congress or from th e Constitution itself.” Youngstown Sheet & Tube Co. v. Sawyer , 343 U. S. 579, 585. In the latter case, the Presi

dent’s authority is sometimes “conclusive and preclusive.” Id. , at 638 (Jackson, J., concurring). When th e President exercises such author

ity, Congress cannot act on, and courts cannot examine, the Presi

dent’s actions. It follows that an Act of Congress—eith er a specific one targeted at the President or a ge nerally applicable one—may not crim

inalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidenti al actions. The Court thus concludes that the President is absolutely immune from criminal prosecution for con

duct within his exclusive sphere of constitutional authority. Pp. 6–9. (2) Not all of the President’s offici al acts fall within his “conclusive and preclusive” authority. The reasons that ju stify the President’s ab

solute immunity from criminal prosec ution for acts within the scope of his exclusive constitutional authority do not extend to conduct in areas where his authority is sh ared with Congress. To determine the Presi

dent’s immunity in this context, th e Court looks primar ily to the Fram

ers’ design of the Presidency with in the separation of powers, prece

dent on Presidential immunity in th e civil context, and criminal cases where a President resisted prosecut orial demands for documents. P. 9. (i) The Framers designed the Pr esidency to provide for a “vigor

ous” and “energetic” Executive. The Federalist No. 70, pp. 471–472 (J. Cooke ed. 1961) (A. Hamilton). Th ey vested the President with “su

pervisory and policy responsibilities of utmost discretion and sensitiv

ity.” Nixon v. Fitzgerald , 457 U. S. 731, 750. Appreciating the “unique risks” that arise when the President’s energies are diverted by pro

ceedings that might render him “unduly cautious in the discharge of his official duties,” the Court has recognized Presidential immunities and privileges “rooted in the constitu tional tradition of the separation of powers and supported by our history.” Id. , at 749, 751, 752, n. 32. In Fitzgerald , for instance, the Court concluded that a former Presi

dent is entitled to absolute immunity from “damages liability for acts within the ‘outer perimeter’ of his official responsibility.” Id. , at 756. The Court’s “dominant concern” was to avoid “diversion of the Presi

dent’s attention during the decision making process caused by needless3 Cite as: 603 U. S. ____ (2024)

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worry as to the possibility of damages actions stemming from any par

ticular official decision.” Clinton v. Jones , 520 U. S. 681, 694, n. 19.

By contrast, when prosecutors have sought evidence from the Pres

ident, the Court has consistently re jected Presidential claims of abso

lute immunity. During the treason trial of former Vice President Aa

ron Burr, for instance, Chief Justice Marshall rejected President Thomas Jefferson’s claim that the President could not be subjected to a subpoena. Marshall simultaneousl y recognized, however, the exist

ence of a “privilege” to withhold certain “official paper[s].” United States v. Burr , 25 F. Cas. 187, 192 (No. 14,694) (CC Va.). And when a subpoena issued to Pres ident Richard Nixon, the Court rejected his claim of “absolute privilege.” United States v. Nixon , 418 U. S. 683, 703. But recognizing “the public interest in candid, objective, and even blunt or harsh opinions in Presidenti al decisionmaking,” it held that a “presumptive privilege” protects Presidential communications. Id ., at 708. Because that privilege “relates to the effective discharge of a President’s powers,” id. , at 711, the Court deemed it “fundamental to the operation of Government and inex tricably rooted in the separation of powers under the Constitution.” Id ., at 708. Pp. 9–12. (ii) Criminally prosecuting a President for official conduct un

doubtedly poses a far greater threat of intrusion on the authority and functions of the Executive Branch th an simply seeking evidence in his possession. The danger is greater th an what led the Court to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taki ng the “bold and unhesitating ac

tion” required of an in dependent Executive. Fitzgerald , 457 U. S., at 745. Although the President might be exposed to fewer criminal pros

ecutions than civil damages suits, the threat of trial, judgment, and imprisonment is a far greater deterrent and plainly more likely to dis

tort Presidential decisionmaking th an the potential payment of civil damages. The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions un

der “a pall of potential prosecution,” McDonnell v. United States , 579 U. S. 550, 575, raises “unique risks to the effective functioning of gov

ernment,” Fitzgerald , 457 U. S., at 751. But th ere is also a compelling “public interest in fair and effective law enforcement.” Vance , 591 U. S., at 808.

Taking into account these competing considerations, the Court con

cludes that the separation of powe rs principles explicated in the Court’s precedent necessitate at least a presumptive immunity from criminal prosecution for a President’ s acts within th e outer perimeter of his official responsibility. Such an immunity is required to safe

guard the independence and effect ive functioning of the Executive4 TRUMP v. UNITED STATES

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Branch, and to enable the President to carry out his constitutional du

ties without undue caution. At a minimum, the President must be immune from prosecution for an offi cial act unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the author ity and functions of the Executive Branch.” Fitzgerald , 457 U. S., at 754. Pp. 12–15. (3) As for a President’s unofficial acts, there is no immunity. Alt

hough Presidential immunity is required for official actions to ensure that the President’s deci sionmaking is not distorted by the threat of future litigation stemming from thos e actions, that concern does not support immunity for unofficial conduct. Clinton , 520 U. S., at 694, and n. 19. The separation of powe rs does not bar a prosecution predi

cated on the President’s unofficial acts. P. 15.

(b) The first step in deciding whet her a former President is entitled to immunity from a particular prosec ution is to distinguish his official from unofficial actions. In this case, no court thus far has drawn that distinction, in general or with resp ect to the conduct alleged in partic

ular. It is therefore in cumbent upon the Court to be mindful that it is “a court of final review and not first view.” Zivotofsky v. Clinton , 566 U. S. 189, 201. Critical threshold issues in this case are how to differ

entiate between a President’s official and unofficial actions, and how to do so with respect to the indictment’s extensive and detailed allega

tions covering a broad range of conduc t. The Court offers guidance on those issues. Pp. 16–32. (1) When the Presiden t acts pursuant to “constitutional and stat

utory authority,” he takes official ac tion to perform the functions of his office. Fitzgerald , 456 U. S., at 757. Determining whether an action is covered by immunity thus begins with assessing the President’s au

thority to take that action. But th e breadth of the President’s “discre

tionary responsibilities” under the Constitution and laws of the United States frequently makes it “difficu lt to determine which of [his] innu

merable ‘functions’ encompasse d a particular action.” Id. , at 756. The immunity the Court has recognized therefore extends to the “outer pe

rimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or palpably beyond [his] authority.” Blassingame v. Trump , 87 F. 4th 1, 13 (CADC).

In dividing official from unoffici al conduct, courts may not inquire into the President’s moti ves. Such a “highly in trusive” inquiry would risk exposing even the mo st obvious instances of official conduct to ju

dicial examination on the mere a llegation of improper purpose. Fitz

gerald , 457 U. S., at 756. Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. Oth

erwise, Presidents would be subject to trial on “every allegation that an action was unlawful,” depriving immunity of its intended effect.5 Cite as: 603 U. S. ____ (2024)

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Ibid . Pp. 17–19. (2) With the above principles in mind, the Court turns to the con

duct alleged in the indictment. Certain allegations—such as those in

volving Trump’s discussions with the Acting Attorney General—are readily categorized in light of the na ture of the President’s official re

lationship to the office held by that individual. Other allegations— such as those involving Trump’s interactions with the Vice President, state officials, and certain private parties, and his comments to the general public—present more difficult questions. Pp. 19–30. (i) The indictment alleges that as part of their conspiracy to overturn the legitimate results of the 2020 presidential election, Trump and his co-conspirators attempted to leverage the Justice De

partment’s power and authority to convince certain States to replace their legitimate electors with Trump’ s fraudulent slates of electors. According to the indictment, Trump met with the Acting Attorney General and other senior Justice Department and White House offi

cials to discuss investigating purported election fraud and sending a letter from the Department to those States regarding such fraud. The indictment further alleges that after the Acting Attorney General re

sisted Trump’s requests, Trump repeat edly threatened to replace him.

The Government does not dispute that the indictment’s allegations regarding the Justice Department involve Trump’s use of official power. The allegations in fact pl ainly implicate Trump’s “conclusive and preclusive” authorit y. The Executive Branch has “exclusive au

thority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon , 418 U. S., at 693. And the President’s “management of the Ex

ecutive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney Gen

eral—“in their most important duties.” Fitzgerald , 457 U. S., at 750. The indictment’s allegations that the requested investigations were shams or proposed for an improper purpose do not divest the President of exclusive authority over the in vestigative and pr osecutorial func

tions of the Justice Depa rtment and its official s. Because the Presi

dent cannot be prosecuted for conduct within his exclusive constitu

tional authority, Trump is absolute ly immune from prosecution for the alleged conduct involving his discussions with Justice Department of

ficials. Pp. 19–21. (ii) The indictment next alle ges that Trump and his co-conspira

tors “attempted to enlist the Vice President to use his ceremonial role at the January 6 certification proceed ing to fraudulently alter the elec

tion results.” App. 187, Indictment ¶10(d). In particular, the indict

ment alleges several conversations in which Trump pressured the Vice President to reject States’ legitimate electoral votes or send them back6 TRUMP v. UNITED STATES

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to state legislatures for review.

Whenever the President and Vice Pr esident discuss their official re

sponsibilities, they engage in offici al conduct. Pres iding over the Jan

uary 6 certification proceeding at which Members of Congress count the electoral votes is a constitution al and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection wi th his role at the certification pro

ceeding thus involve official conduct, and Trump is at least presump

tively immune from prosecution for such conduct.

The question then becomes whethe r that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity. The Court therefore remands to the District Court to assess in the first instance whether a prosecution involving Trump’s allege d attempts to influence the Vice President’s oversight of the certification proceed ing would pose any dangers of in

trusion on the authorit y and functions of the Executive Branch. Pp. 21–24. (iii) The indictment’s remaining allegations involve Trump’s in

teractions with persons outside the Executive Branch: state officials, private parties, and the general pub lic. In particular, the indictment alleges that Trump and his co-conspirators attempted to convince cer

tain state officials that election fraud had tainted the popular vote count in their States, and thus electoral votes for Trump’s opponent needed to be changed to electoral votes for Trump. After Trump failed to convince those officials to alter their state processes, he and his coconspirators allegedly developed and effectuated a plan to submit fraudulent slates of Presidential el ectors to obstruct the certification proceeding. On Trump’s view, the a lleged conduct qualifies as official because it was undertaken to ensure the integrity and proper admin

istration of the federal election. As the Government sees it, however, Trump can point to no plausible sou rce of authority enabling the Pres

ident to take such actions. Dete rmining whose characterization may be correct, and with respect to which conduct, requires a fact-specific analysis of the indictment’s extens ive and interrelated allegations. The Court accordingly remands to th e District Court to determine in the first instance whether Trump’s co nduct in this area qualifies as official or unofficial. Pp. 24–28. (iv) The indictment also contains various allegations regarding Trump’s conduct in connection with th e events of January 6 itself. The alleged conduct largely consists of Trump’s communications in the form of Tweets and a public address. The President possesses “ex

traordinary power to speak to his fello w citizens and on their behalf.” Trump v. Hawaii , 585 U. S. 667, 701. So most of a President’s public7 Cite as: 603 U. S. ____ (2024)

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communications are likely to fall co mfortably within the outer perim

eter of his official responsibilities. There may, however, be contexts in which the President speaks in an unofficial capacity—perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of “content, fo rm, and context” will necessarily in

form the inquiry. Snyder v. Phelps , 562 U. S. 443, 453. Whether the communications alleged in the indictment involve official conduct may depend on the content and context of each. This necessarily factbound analysis is best performed initially by the District Court. The Court therefore remands to the District Co urt to determine in the first in

stance whether this alleged conduct is official or unofficial. Pp. 28–30. (3) Presidents cannot be indicted based on conduct for which they are immune from prosecution. On remand, the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct fo r which a President must be im

mune from prosecution. And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct. Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial. Pp. 30–32.

(c) Trump asserts a far broader i mmunity than the limited one the Court recognizes, contending that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeach

ment and Senate conviction prec ede a President’s criminal prosecu

tion. But the text of the Clause d oes not address whether and on what conduct a President may be prosecuted if he was never impeached and convicted. See Art. I, §3, cl. 7. Historical evidence likewise lends little support to Trump’s position. The Federalist Papers on which Trump relies concerned the checks available against a sitting President; they did not endorse or even consider whether the Impeachment Judgment Clause immunizes a former President from prosec ution. Transforming the political process of impeachment into a necessary step in the en

forcement of criminal law finds little support in the text of the Consti

tution or the structure of the Nation’s Government. Pp. 32–34.

(d) The Government takes a similarly broad view, contending that the President enjoys no immunity from criminal prosecution for any action. On its view, as-applied cha llenges in the course of the trial suffice to protect Article II interests, and review of a district court’s decisions on such challenges should be deferred until after trial. But questions about whether the Presiden t may be held liable for particu

lar actions, consistent with the se paration of powers, must be ad

dressed at the outset of a proceeding. Even if the President were ulti

mately not found liable for certain official actions, the possibility of an extended proceeding alone may render him “unduly cautious in the8 TRUMP v. UNITED STATES

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discharge of his official duties.” Fitzgerald , 457 U. S., at 752, n. 32. The Constitution does not tolerate such impediments to “the effective functioning of government.” Id. , at 751. Pp. 34–37.

(e) This case poses a question of lasting significance: When may a former President be prosecuted for o fficial acts taken during his Pres

idency? In answering th at question, unlike the political branches and the public at large, the Court cannot afford to fixate exclusively, or even primarily, on presen t exigencies. Enduring separation of powers principles guide our decision in this case. The President enjoys no im

munity for his unofficial acts, and not everything the President does is official. The President is not above the law. But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presump

tive immunity from prosecution for his official acts. That immunity applies equally to all occupants of the Oval Office. Pp. 41–43. 91 F. 4th 1173, vacated and remanded.

R OBERTS , C. J., delivered the opinio n of the Court, in which T HOMAS , A LITO , G ORSUCH , and K AVANAUGH , JJ., joined in full, and in which B AR

RETT , J., joined except as to Part III–C. T HOMAS , J., filed a concurring opinion. B ARRETT , J., filed an opinion co ncurring in part. S OTOMAYOR , J., filed a dissenting opinion, in which K AGAN and J ACKSON , JJ., joined. J ACKSON , J., filed a dissenting opinion._________________

_________________ 1 Cite as: 603 U. S. ____ (2024)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the Unit ed States, Washingt on, D. C. 20543, pio@supremecourt.gov , of any typographical or other formal errors. 

## SUPREME COURT OF THE UNITED STATES

No. 23–939

DONALD J. TRUMP, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[July 1, 2024]

C HIEF J USTICE R OBERTS delivered the opinion of the Court.
This case concerns the federal indictment of a former President of the United States for conduct alleged to involve official acts during his tenure in office. We consider the scope of a President’s immunity from criminal prosecution.

I From January 2017 until January 2021, Donald J. Trump served as President of the United States. On Au

gust 1, 2023, a federal grand jury indicted him on four counts for conduct that occurred during his Presidency fol

lowing the November 2020 election. The indictment alleged that after losing that election , Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the elec

tion results. According to the indictment, Trump advanced his goal through five primary means. First, he and his co-conspirators “used knowingly false claims of election fraud to get state legislators and election officials to . . . change electoral2 TRUMP v. UNITED STATES

Opinion of the Court votes for [Trump’s] opponent, Jo seph R. Biden, Jr., to elec

toral votes for [Trump].” App. 185, Indictment ¶10(a). Sec

ond, Trump and his co-conspirators “organized fraudulent slates of electors in seven targeted states” and “caused these fraudulent electors to transmit their false certificates to the Vice President and othe r government officials to be counted at the certification proceeding on January 6.” Id

., at 186, ¶10(b). Third, Trump and his co-conspirators at

tempted to use the Justice De partment “to conduct sham election crime investigations and to send a letter to the tar

geted states that falsely claimed that the Justice Depart

ment had identified significant concerns that may have im

pacted the election outcome.” Id ., at 186–187, ¶10(c). Fourth, Trump and his co-conspirators attempted to per

suade “the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.” Id ., at 187, ¶10(d). And when that failed, on the morning of January 6, they “repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding.” Ibid. Fifth, when “a large and angry crowd . . . violently attackedthe Capitol and halted the proceeding,” Trump and his coconspirators “exploited the di sruption by redoubling efforts to levy false claims of election fraud and convince Members of Congress to further delay the certification.” Id ., at 187– 188, ¶10(e). Based on this alleged conduct, the indictment charged Trump with (1) conspiracy to defraud the United States in violation of 18 U. S. C. §371, (2) conspiracy to obstruct an official proceeding in violation of §1512(k), (3) obstruction of and attempt to obstruct an o fficial proceeding in violation3 Cite as: 603 U. S. ____ (2024)

Opinion of the Court of §1512(c)(2), §2, and (4) conspiracy against rights in vio

lation of §241. 1 Trump moved to dismiss the indictment based on Presi

dential immunity. In his view, the conduct alleged in the indictment, properly characterized, was that while he was President he (1) “made public statements about the admin

istration of the federal election”; (2) communicated with senior Justice Department officials “about investigating election fraud and about choosing the leadership” of the De

partment; (3) “communicated with state officials about the administration of the federal election and their exercise of official duties with respect to it”; (4) “communicated with the Vice President” and with “Members of Congress about the exercise of their official duties regarding the election certification”; and (5) “authori zed or directed others to or

ganize contingent slates of ele ctors in furtherance of his at

tempts to convince the Vice Pres ident to exercise his official authority in a manner advocated for by President Trump.” Motion To Dismiss Indictment Based on Presidential Im

munity in No. 1:23–cr–00257 (DC), ECF Doc. 74, p. 9. Trump argued that all of the indictment’s allegations fell within the core of his official duties. Id. , at 27. And he con

tended that a President has absolute immunity from crimi

nal prosecution for actions performed within the outer pe

rimeter of his official responsib ilities, to ensure that he can undertake the especially sensitive duties of his office with bold and unhesitating action. Id. , at 14, 24. The District Court denied the motion to dismiss, holding

——————

1 Trump contends that the indictment stretches Section 1512(c)(2) “far beyond its natural meaning.” Brief fo r Petitioner 39, n. 4. As we ex

plained in Fischer v. United States , Section 1512(c)(2) covers acts that impair “the availability or integrity for use in an official proceeding of records, documents, objects, or . . . other things used in the proceeding.” 603 U. S. ___, ___ (2024) (slip op., at 16). If necessary, the District Court should determine in the first instance whether the Section 1512(c)(2) charges may proceed in light of our decision in Fischer

.4 TRUMP v. UNITED STATES

Opinion of the Court that “former Presidents do not possess absolute federal criminal immunity for any acts committed while in office.” 2023 WL 8359833, *15 (DC, Dec. 1, 2023). The District Court recognized that the President is immune from dam

ages liability in civil cases, to protect against the chilling effect such exposure might have on the carrying out of his responsibilities. See Nixon v. Fitzgerald , 457 U. S. 731, 749–756 (1982). But it reasoned that “the possibility of vex

atious post-Presidency litigation is much reduced in the criminal context” in light of “[t]he robust procedural safe

guards attendant to federal criminal prosecutions.” 2023 WL 8359833, *9–*10. The District Court declined to decide whether the indicted conduct in volved official acts. See id.

, at *15. The D. C. Circuit affirmed. 91 F. 4th 1173 (2024) ( per cu

riam ). Citing Marbury v. Madison , 1 Cranch 137 (1803), the court distinguished between two kinds of official acts: discretionary and ministerial. 91 F. 4th, at 1189–1190. It observed that “although discre tionary acts are ‘only politi

cally examinable,’ the judiciary has the power to hear cases” involving ministerial acts that an officer is directed to per

form by the legislature. Ibid. (quoting Marbury , 1 Cranch, at 166). From this distinction, the D. C. Circuit concluded that the “separation of powers doctrine, as expounded in Marbury and its progeny, necessarily permits the Judiciary to oversee the federal criminal prosecution of a former Pres

ident for his official acts because the fact of the prosecution means that the former President has allegedly acted in de

fiance of the Congress’s laws.” 91 F. 4th, at 1191. In the court’s view, the fact that Trump’s actions “allegedly vio

lated generally applicable criminal laws” meant that those actions “were not properly within the scope of his lawful discretion.” Id. , at 1192. The D. C. Circuit thus concluded that Trump had “no structural immunity from the charges in the Indictment.” Ibid. Like the District Court, the D. C.5 Cite as: 603 U. S. ____ (2024)

Opinion of the Court Circuit declined to analyze th e actions described in the in

dictment to determine whether th ey involved official acts. See id. , at 1205, n. 14. We granted certiorari to consider the following question: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” 601 U. S. ___ (2024).

II This case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency. We are called upon to consider whether and under what circumstances such a prosecution may pro

ceed. Doing so requires carefu l assessment of the scope of Presidential power under the Constitution. We undertake that responsibility conscious that we must not confuse “the issue of a power’s validity with the cause it is invoked to promote,” but must instead focus on the “enduring conse

quences upon the balanced po wer structure of our Repub

lic.” Youngstown Sheet & Tube Co. v. Sawyer , 343 U. S. 579, 634 (1952) (Jackson, J., concurring). The parties before us do not dispute that a former Presi

dent can be subject to crimi nal prosecution for unofficial acts committed while in office. See Tr. of Oral Arg. 28. They also agree that some of the conduct described in the indictment includes actions taken by Trump in his unoffi

cial capacity. See id ., at 28–30, 36–37, 124. They disagree, however, about whether a former Presi

dent can be prosecuted for his official actions. Trump con

tends that just as a President is absolutely immune from civil damages liability for acts within the outer perimeter of his official responsibilities, Fitzgerald , 457 U. S., at 756, he must be absolutely immune from criminal prosecution for such acts. Brief for Petitioner 10. And Trump argues that the bulk of the indictment’s allegations involve conduct in6 TRUMP v. UNITED STATES

Opinion of the Court his official capacity as President. See Tr. of Oral Arg. 30– 32. Although the Government ag rees that some official ac

tions are included in the in dictment’s allegations, see id. , at 125, it maintains that a former President does not enjoy im

munity from criminal prosecution for any actions, regard

less of how they are characterized. See Brief for United States 9. We conclude that under our constitutional structure of separated powers, the nature of Presidential power re

quires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers , this immunity must be ab

solute. As for his remaining offi cial actions, he is also enti

tled to immunity. At the cu rrent stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a pre

sumptive immunity is sufficient.

A Article II of the Constitution provides that “[t]he execu

tive Power shall be vested in a President of the United States of America.” §1, cl. 1. The President’s duties are of “unrivaled gravity and breadth.” Trump v. Vance , 591 U. S. 786, 800 (2020). They include, for instance, commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and ap

pointing public ministers and consuls, the Justices of this Court, and Officers of the United States. See §2. He also has important foreign relations responsibilities: making treaties, appointing ambassado rs, recognizing foreign gov

ernments, meeting foreign leaders, overseeing interna

tional diplomacy and intelligence gathering, and managing matters related to terrorism, trade, and immigration. See §§2, 3. Domestically, he must “take Care that the Laws be faithfully executed,” §3, and he bears responsibility for the7 Cite as: 603 U. S. ____ (2024)

Opinion of the Court actions of the many departments and agencies within the Executive Branch. He also pl ays a role in lawmaking by recommending to Congress the measures he thinks wise and signing or vetoing the bills Congress passes. See Art. I, §7, cl. 2; Art. II, §3. No matter the context, the President’s authority to act necessarily “stem[s] either from an act of Congress or from the Constitution itself.” Youngstown , 343 U. S., at 585. In the latter case, the President’s authority is sometimes “con

clusive and preclusive.” Id. , at 638 (Jackson, J., concur

ring). When the President exercises such authority, he may act even when the measures he takes are “incompatible with the expressed or implied will of Congress.” Id ., at 637. The exclusive constitutional authority of the President “dis

abl[es] the Congress from acting upon the subject.” Id. , at 637–638. And the courts have “no power to control [the President’s] discretion” when he acts pursuant to the pow

ers invested exclusively in him by the Constitution. Marbury , 1 Cranch, at 166. If the President claims authority to act but in fact exer

cises mere “individual will” and “authority without law,” the courts may say so. Youngstown , 343 U. S., at 655 (Jack

son, J., concurring). In Youngstown , for instance, we held that President Truman exceeded his constitutional author

ity when he seized most of the Nation’s steel mills. See id.

, at 582–589 (majority opinion). But once it is determined that the President acted within the scope of his exclusive authority, his discretion in exercising such authority cannot be subject to further judicial examination. The Constitution, for example, vests the “Power to Grant Reprieves and Pardons for Offences against the United States” in the President. Art. II, §2, cl. 1. During and after the Civil War, President Lincoln offered a full pardon, with restoration of property rights , to anyone who had “engaged in the rebellion” but agreed to take an oath of allegiance to the Union. United States v. Klein , 13 Wall. 128, 139–1418 TRUMP v. UNITED STATES

Opinion of the Court (1872). But in 1870, Congress enacted a provision that pro

hibited using the President’s pardon as evidence of restora

tion of property rights. Id. , at 143–144. Chief Justice Chase held the provision uncon stitutional because it “im

pair[ed] the effect of a pardon, and thus infring[ed] the con

stitutional power of the Executive.” Id. , at 147. “To the executive alone is intrusted the power of pardon,” and the “legislature cannot change the effect of such a pardon any more than the executive can change a law.” Id. , at 147–148. The President’s authority to pardon, in other words, is “con

clusive and preclusive,” “disabling the Congress from acting upon the subject.” Youngstown , 343 U. S., at 637–638 (Jackson, J., concurring). Some of the President’s othe r constitutional powers also fit that description. “The President’s power to remove—and thus supervise—those who wield executive power on his be

half,” for instance, “follows from the text of Article II.” Seila Law LLC v. Consumer Financial Protection Bureau , 591 U. S. 197, 204 (2020). We have thus held that Congress lacks authority to control the President’s “unrestricted power of removal” with respect to “executive officers of the United States whom he has appointed.” Myers v. United States , 272 U. S. 52, 106, 176 (1926); see Youngstown , 343 U. S., at 638, n. 4 (Jackson, J., concurring) (citing the Pres

ident’s “exclusive power of removal in executive agencies” as an example of “conclusive and preclusive” constitutional authority); cf. Seila Law , 591 U. S., at 215 (noting only “two exceptions to the President’ s unrestricted removal power”). The power “to control recognition determinations” of foreign countries is likewise an “exclusive power of the President.” Zivotofsky v. Kerry , 576 U. S. 1, 32 (2015). Congressional commands contrary to the President’s recognition determi

nations are thus invalid. Ibid. Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional autho rity. It follows that an Act9 Cite as: 603 U. S. ____ (2024)

Opinion of the Court of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal pros

ecution that examines such Presidential actions. We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.

B
But of course not all of the President’s official acts fall within his “conclusive and preclusive” authority. As Justice Robert Jackson recognized in Youngstown , the President sometimes “acts pursuant to an express or implied author

ization of Congress,” or in a “zone of twilight” where “he and Congress may have concurrent authority.” 343 U. S., at 635, 637 (concurring opinion). The reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of his exclusive authority therefore do not extend to conduct in areas where his authority is shared with Congress. We recognize that only a limited number of our prior de

cisions guide determination of the President’s immunity in this context. That is becaus e proceedings directly involving a President have been uncommon in our Nation, and “deci

sions of the Court in this area” have accordingly been “rare” and “episodic.” Dames & Moore v. Regan , 453 U. S. 654, 661 (1981). To resolve the matter, therefore, we look primarily to the Framers’ design of the Presidency within the separa

tion of powers, our precedent on Presidential immunity in the civil context, and our criminal cases where a President resisted prosecutorial demands for documents.

1 The President “occupies a unique position in the consti

tutional scheme,” Fitzgerald , 457 U. S., at 749, as “the only10 TRUMP v. UNITED STATES

Opinion of the Court person who alone composes a branch of government,” Trump v. Mazars USA, LLP , 591 U. S. 848, 868 (2020). The Framers “sought to encourage en ergetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ulti

mate authority that, in respect to the other branches, the Constitution divides among many.” Clinton v. Jones , 520 U. S. 681, 712 (1997) (Breyer, J., concurring in judgment). They “deemed an energetic exec utive essential to ‘the pro

tection of the community against foreign attacks,’ ‘the steady administration of the laws,’ ‘the protection of prop

erty,’ and ‘the security of liberty.’ ” Seila Law , 591 U. S., at 223–224 (quoting The Federalist No. 70, p. 471 (J. Cooke ed. 1961) (A. Hamilton)). The purpose of a “vigorous” and “energetic” Executive, they thought, was to ensure “good government,” for a “feeble exec utive implies a feeble execu

tion of the government.” Id ., at 471–472. The Framers accordingly vested the President with “su

pervisory and policy responsibilities of utmost discretion and sensitivity.” Fitzgerald , 457 U. S., at 750. He must make “the most sensitive and far-reaching decisions en

trusted to any official under our constitutional system.” Id.

, at 752. There accordingly “exists the greatest public inter

est” in providing the President with “ ‘the maximum ability to deal fearlessly and impartially with’ the duties of his of

fice.” Ibid. (quoting Ferri v. Ackerman , 444 U. S. 193, 203 (1979)). Appreciating the “unique risks to the effective functioning of government” that arise when the President’s energies are diverted by proceed ings that might render him “unduly cautious in the discharge of his official duties,” we have recognized Presidential immunities and privileges “rooted in the constitutional tradition of the separation of powers and supported by our history.” Fitzgerald , 457 U. S., at 749, 751, 752, n. 32. In Nixon v. Fitzgerald , for instance, we recognized that as “a functionally mandated incident of [his] unique office,”11 Cite as: 603 U. S. ____ (2024)

Opinion of the Court a former President “is entitled to absolute immunity from damages liability predicated on his official acts.” Id ., at 749. That case involved a terminated Air Force employee who sued former President Richard Nixon for damages, al

leging that Nixon approved an Air Force reorganization that wrongfully led to his firing. In holding that Nixon was immune from that suit, “our dominant concern” was to avoid “diversion of the President’s attention during the de

cisionmaking process caused by needless worry as to the possibility of damages actions stemming from any particu

lar official decision.” Clinton , 520 U. S., at 694, n. 19. “[T]he singular importance of the President’s duties” impli

cating “matters likely to ‘arouse the most intense feelings,’ ” coupled with “the sheer prominence of [his] office,” height

ens the prospect of private damages suits that would threaten such diversion. Fitzgerald , 457 U. S., at 751–753 (quoting Pierson v. Ray , 386 U. S. 547, 554 (1967)). We therefore concluded that the President must be absolutely immune from “damages liability for acts within the ‘outer perimeter’ of his official responsibility.” Fitzgerald , 457 U. S., at 756. By contrast, when prosecutor s have sought evidence from the President, we have consistently rejected Presidential claims of absolute immunity. For instance, during the trea

son trial of former Vice Pres ident Aaron Burr, Chief Justice Marshall rejected President Thomas Jefferson’s claim that the President could not be subjected to a subpoena. Mar

shall reasoned that “the law does not discriminate between the president and a private citizen.” United States v. Burr

, 25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807) ( Burr I ). Be

cause a President does not “stand exempt from the general provisions of the constitution,” including the Sixth Amend

ment’s guarantee that those accused shall have compulsory process for obtaining witnesse s for their defense, a sub

poena could issue. Id. , at 33–34. Marshall acknowledged, however, the existence of a12 TRUMP v. UNITED STATES

Opinion of the Court “privilege” to withhold certain “official paper[s]” that “ought not on light ground to be forced into public view.” United States v. Burr , 25 F. Cas. 187, 192 (No. 14,694) (CC Va. 1807) ( Burr II ); see also Burr I , 25 F. Cas., at 37 (stating that nothing before the court showed that the document in question “contain[ed] any matter the disclosure of which would endanger the public safety”). And he noted that a court may not “be required to proceed against the president as against an ordinary individual.” Burr II , 25 F. Cas., at 192. Similarly, when a subpoena issued to President Nixon to produce certain tape recordings and documents relating to his conversations with aides and advisers, this Court re

jected his claim of “absolute pr ivilege,” given the “constitu

tional duty of the Judicial Branch to do justice in criminal prosecutions.” United States v. Nixon , 418 U. S. 683, 703, 707 (1974). But we simultaneously recognized “the public interest in candid, objective, and even blunt or harsh opin

ions in Presidential decisionmaking,” as well as the need to protect “communications between high Government offi

cials and those who advise and assist them in the perfor

mance of their manifold duties.” Id ., at 705, 708. Because the President’s “need for complete candor and objectivity from advisers calls for great deference from the courts,” we held that a “presumptive privilege” protects Presidential communications. Id ., at 706, 708. That privilege, we ex

plained, “relates to the effecti ve discharge of a President’s powers.” Id. , at 711. We thus deemed it “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.” Id ., at 708.

2 Criminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and functions of the Executive Branch than simply seeking evidence in his possession, as in Burr and13 Cite as: 603 U. S. ____ (2024)

Opinion of the Court

Nixon . The danger is akin to, in deed greater than, what led us to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taking the “bold and unhesitating action” required of an in

dependent Executive. Fitzgerald , 457 U. S., at 745. Alt

hough the President might be exposed to fewer criminal prosecutions than the range of civil damages suits that might be brought by various plaintiffs, the threat of trial, judgment, and imprisonment is a far greater deterrent. Po

tential criminal liability, and the peculiar public oppro

brium that attaches to criminal proceedings, are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages. The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making de

cisions under “a pall of potential prosecution,” McDonnell v. United States , 579 U. S. 550, 575 (2016), raises “unique risks to the effective fun ctioning of government,” Fitzger

ald , 457 U. S., at 751. A President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. And if a former President’s official acts are ro utinely subjected to scrutiny in criminal prosecutions, “the independence of the Execu

tive Branch” may be significantly undermined. Vance , 591 U. S., at 800. The Framers’ de sign of the Presidency did not envision such counterproductive burdens on the “vigor[ ]” and “energy” of the Executive. The Federalist No. 70, at 471–472. We must, however, “recognize[] the countervailing inter

ests at stake.” Vance , 591 U. S., at 799. Federal criminal laws seek to redress “a wrong to the public” as a whole, not just “a wrong to the individual.” Huntington v. Attrill , 146 U. S. 657, 668 (1892). There is therefore a compelling “pub

lic interest in fair and effective law enforcement.” Vance

, 591 U. S., at 808. The President, charged with enforcing14 TRUMP v. UNITED STATES

Opinion of the Court
federal criminal laws, is not above them. Chief Justice Marshall’s decisions in Burr and our deci

sion in Nixon recognized the distinct interests present in criminal prosecutions. Although Burr acknowledged that the President’s official papers may be privileged and pub

licly unavailable, it did not grant him an absolute exemp

tion from responding to subpoenas. See Burr II , 25 F. Cas., at 192; Burr I , 25 F. Cas., at 33–34. Nixon likewise recog

nized a strong protection for the President’s confidential communications—a “presumptive privilege”—but it did not entirely exempt him from providing evidence in criminal proceedings. 418 U. S., at 708. Taking into account these competing considerations, we conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immun

ity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility. Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution. Indeed, if presumptive protection for the President is necessary to enabl e the “effective discharge” of his powers when a prosecutor merely seeks evidence of his official papers and communications, id. , at 711, it is cer

tainly necessary when the prosecutor seeks to charge, try, and imprison the President himself for his official actions. At a minimum, the President must therefore be immune from prosecution for an offici al act unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald , 457 U. S., at 754. But as we explain below, the current stage of the proceed

ings in this case does not requi re us to decide whether this immunity is presumptive or absolute. See Part III–B, infra

. Because we need not decide t hat question today, we do not15 Cite as: 603 U. S. ____ (2024)

Opinion of the Court decide it. “[O]ne case” in mo re than “two centuries does not afford enough experience” to definitively and comprehen

sively determine the President’s scope of immunity from criminal prosecution. Mazars , 591 U. S., at 871.

C As for a President’s unofficial acts, there is no immunity. The principles we set out in Clinton v. Jones confirm as much. When Paula Jones brought a civil lawsuit against then-President Bill Clinton for acts he allegedly committed prior to his Presidency, we re jected his argument that he enjoyed temporary immunity from the lawsuit while serv

ing as President. 520 U. S., at 684. Although Presidential immunity is required for official actions to ensure that the President’s decisionmaking is not distorted by the threat of future litigation stemming from those actions, that concern does not support immunity for unofficial conduct. Id. , at 694, and n. 19. The “ ‘justifying purposes’ ” of the immunity we recognized in Fitzgerald , and the one we recognize to

day, are not that the President must be immune because he is the President; rather, they are to ensure that the Presi

dent can undertake his constitutionally designated func

tions effectively, free from undue pressures or distortions. 520 U. S., at 694, and n. 19 (quoting Fitzgerald , 457 U. S., at 755). “[I]t [is] the nature of the function performed, not the identity of the actor who perform[s] it, that inform[s] our immunity analysis.” Forrester v. White , 484 U. S. 219, 229 (1988). The separation of powers does not bar a prose

cution predicated on the President’s unofficial acts. 2

——————

2 Our decision in Clinton permitted claims alleging unofficial acts to proceed against the sitting President. See 520 U. S., at 684. In the crim

inal context, however, the Justice Department “has long recognized” that “the separation of powers precludes the criminal prosecution of a sitting President.” Brief for United States 9 (citing A Sitting President’s Ame

nability to Indictment and Criminal Prosecution, 24 Op. OLC 222 (2000); emphasis deleted); see Tr. for Oral Arg. 78.16 TRUMP v. UNITED STATES

Opinion of the Court

III Determining whether a former President is entitled to immunity from a particular prosecution requires applying the principles we have laid out to his conduct at issue. The first step is to distinguish his official from unofficial actions. In this case, however, no court has thus far considered how to draw that distinction, in general or with respect to the conduct alleged in particular. Despite the unprecedented nature of this case, and the very significant constitutional questions that it raises, the lower courts rendered their de cisions on a highly expedited basis. Because those courts categorically rejected any form of Presidential immunity, they did not analyze the conduct alleged in the indictment to decide which of it should be cat

egorized as official and which unofficial. Neither party has briefed that issue before us (though they discussed it at oral argument in response to questions). And like the underly

ing immunity question, that categorization raises multiple unprecedented and momentous questions about the powers of the President and the limits of his authority under the Constitution. As we have noted, there is little pertinent precedent on those subjects to guide our review of this case—a case that we too are deciding on an expedited basis, less than five months after we granted the Government’s request to construe Trump’s emergency application for a stay as a petition for certiorari, grant that petition, and an

swer the consequential immunity question. See 601 U. S., at ___. Given all these circumstances, it is particularly in

cumbent upon us to be mindful of our frequent admonition that “[o]urs is a court of final review and not first view.” Zivotofsky v. Clinton , 566 U. S. 189, 201 (2012) (internal quotation marks omitted). Critical threshold issues in this case are how to differen

tiate between a President’s official and unofficial actions, and how to do so with respe ct to the indictment’s extensive and detailed allegations covering a broad range of conduct.17 Cite as: 603 U. S. ____ (2024)

Opinion of the Court We offer guidance on those issues below. Certain allega

tions—such as those involving Trump’s discussions with the Acting Attorney General—are readily categorized in light of the nature of the Presid ent’s official relationship to the office held by that individual. Other allegations—such as those involving Trump’s interactions with the Vice Pres

ident, state officials, and certain private parties, and his comments to the general public—present more difficult questions. Although we identify several considerations per

tinent to classifying those allegations and determining whether they are subject to immunity, that analysis ulti

mately is best left to the lowe r courts to perform in the first instance.

A Distinguishing the President’s official actions from his unofficial ones can be difficult. When the President acts pursuant to “constitutional and statutory authority,” he takes official action to perform the functions of his office. Fitzgerald , 457 U. S., at 757. Determining whether an ac

tion is covered by immunity thus begins with assessing the President’s authority to take that action. But the breadth of the President’s “discretionary respon

sibilities” under the Constitution and laws of the United States “in a broad variety of areas, many of them highly sensitive,” frequently makes it “difficult to determine which of [his] innumerable ‘function s’ encompassed a particular action.” Id ., at 756. And some Presidential conduct—for example, speaking to and on behalf of the American people,

see Trump v. Hawaii , 585 U. S. 667, 701 (2018)—certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision. For those reasons, the immunity we have recognized extends to the “outer perimeter” of the Presiden t’s official responsibilities, covering actions so long as they are “not manifestly or pal

pably beyond [his] authority.” Blassingame v. Trump , 8718 TRUMP v. UNITED STATES

Opinion of the Court

F. 4th 1, 13 (CADC 2023) (internal quotation marks omit

ted); see Fitzgerald , 457 U. S., at 755–756 (noting that we have “refused to draw functional lines finer than history and reason would support”). In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of of

ficial conduct to judicial exam ination on the mere allegation of improper purpose, thereby intruding on the Article II in

terests that immunity seeks to protect. Indeed, “[i]t would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government” if “[i]n exercising the functions of his office,” the President was “under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry.” Fitzgerald , 457 U. S., at 745 (quot

ing Spalding v. Vilas , 161 U. S. 483, 498 (1896)). We thus rejected such inquiries in Fitzgerald . The plaintiff there contended that he was dismissed from the Air Force for re

taliatory reasons. See 457 U. S., at 733–741, 756. The Air Force responded that the reorganization that led to Fitzger

ald’s dismissal was undertaken to promote efficiency. Ibid. Because under Fitzgerald’s theory “an inquiry into the President’s motives could not be avoided,” we rejected the theory, observing that “[i]nquiries of this kind could be highly intrusive.” Id. , at 756. “[B]are allegations of malice should not suffice to subject go vernment officials either to the costs of trial or to the burdens of broad-reaching discov

ery.” Harlow v. Fitzgerald , 457 U. S. 800, 817–818 (1982). Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. For in

stance, when Fitzgerald contended that his dismissal vio

lated various congressional statutes and thus rendered his discharge “outside the outer pe rimeter of [Nixon’s] duties,” we rejected that contention. 457 U. S., at 756

. Otherwise, Presidents would be subject to trial on “every allegation19 Cite as: 603 U. S. ____ (2024)

Opinion of the Court that an action was unlawful,” depriving immunity of its in

tended effect. Ibid.

B With these principles in mind, we turn to the conduct al

leged in the indictment.

1The indictment broadly alleges that Trump and his coconspirators sought to “overtu rn the legitimate results of the 2020 presidential election.” App. 183, Indictment ¶7. It charges that they conspired to obstruct the January 6 congressional proceeding at which electoral votes are counted and certified, and the winner of the election is cer

tified as President-elect. Id ., at 181–185, ¶¶4, 7, 9. As part of this conspiracy, Trump and his co-conspirators allegedly attempted to leverage the Jus tice Department’s power and authority to convince certain St ates to replace their legiti

mate electors with Trump’s fraudulent slates of electors. See id ., at 215–220, ¶¶70–85. According to the indictment, Trump met with the Acting Attorney General and other senior Justice Department and White House officials to dis

cuss investigating purported election fraud and sending a letter from the Department to those States regarding such fraud. See, e.g. , id. , at 217, 219–220, ¶¶77, 84. The indict

ment further alleges that after the Acting Attorney General resisted Trump’s requests, Trump repeatedly threatened to replace him. See, e.g. , id ., at 216–217, ¶¶74, 77. The Government does not dispute that the indictment’s allegations regarding the Jus tice Department involve Trump’s “use of official power.” Brief for United States 46;

see id. , at 10–11; Tr. of Oral Arg. 125. The allegations in fact plainly implicate Trump’s “conclusive and preclusive” authority. “[I]nvestigation and prosecution of crimes is a quintessentially executive function.” Brief for United States 19 (quoting Morrison v. Olson , 487 U. S. 654, 70620 TRUMP v. UNITED STATES

Opinion of the Court (1988) (Scalia, J., dissenting)). And the Executive Branch has “exclusive authority and abs olute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon , 418 U. S., at 693; see United States v. Texas , 599 U. S. 670, 678–679 (2023) (“Under Article II, the Executive Branch possesses authority to decide ‘how to pr ioritize and how aggressively to pursue legal actions agai nst defendants who violate the law.’ ” (quoting TransUnion LLC v. Ramirez , 594 U. S. 413, 429 (2021))). The President may discuss potential investi

gations and prosecutions with his Attorney General and other Justice Department official s to carry out his constitu

tional duty to “take Care that the Laws be faithfully exe

cuted.” Art. II, §3. And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer” who “provi des vital assistance to [him] in the performance of [his] constitutional duty to ‘preserve, protect, and defend the Constitution.’ ” Mitchell v. Forsyth

, 472 U. S. 511, 520 (1985) (quoting Art. II, §1, cl. 8). Investigative and prosecutor ial decisionmaking is “the special province of the Executive Branch,” Heckler v. Chaney , 470 U. S. 821, 832 (1985), and the Constitution vests the entirety of the executive power in the President, Art. II, §1. For that reason, Trump’s threatened removal of the Acting Attorney General likewise implicates “conclu

sive and preclusive” Presidential authority. As we have ex

plained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts. Myers

, 272 U. S., at 106, 176; see supra , at 8. The President’s “management of the Executive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney General—“in their most important duties.” Fitzgerald , 457 U. S., at 750 (in

ternal quotation marks and alteration omitted).21 Cite as: 603 U. S. ____ (2024)

Opinion of the Court The indictment’s allegations that the requested investi

gations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice De

partment and its officials. App. 186–187, Indictment ¶10(c). And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the al

leged conduct involving his di scussions with Justice De

partment officials.

2The indictment next alleges that Trump and his coconspirators “attempted to enlis t the Vice President to use his ceremonial role at the January 6 certification proceed

ing to fraudulently alter the election results.” Id ., at 187, ¶10(d). In particular, the indictment alleges several con

versations in which Trump pre ssured the Vice President to reject States’ legitimate electo ral votes or send them back to state legislatures for review. See, e.g. , id ., at 222–224, 226, ¶¶90, 92–93, 97. The Government explained at oral argument that alt

hough it “has not yet had to come to grips with how [it] would analyze” Trump’s interactions with the Vice Presi

dent, there is “support” to char acterize that conduct as offi

cial. Tr. of Oral Arg. 128. Indeed, our constitutional system anticipates that the President and Vice President will re

main in close contact regarding their official duties over the course of the President’s term in office. These two officials are the only ones “elected by the entire Nation.” Seila Law

, 591 U. S., at 224; see Art. II, §1. The Constitution provides that “the Vice President shall become President” in the case of “the removal of the President from office or of his death or resignation.” Amdt. 25, §1. It also “empowers the Vice President, together with a majority of the ‘principal officers22 TRUMP v. UNITED STATES

Opinion of the Court of the executive departments,’ to declare the President ‘un

able to discharge the powers and duties of his office.’ ” Freytag v. Commissioner , 501 U. S. 868, 886–887 (1991) (quot

ing Amdt. 25, §4). And Article I of course names the VicePresident as President of the Senate and gives him a tiebreaking vote. §3, cl. 4. It is thus important for the Presi

dent to discuss official matters with the Vice President to ensure continuity within the Executive Branch and to ad

vance the President’s agenda in Congress and beyond. The Vice President may in practice also serve as one of the President’s closest advisers. The Office of Legal Coun

sel has explained that within the Executive Branch, the Vice President’s “sole function [is] advising and assisting the President.” Whether the Office of the Vice President Is an ‘Agency’ for Purposes of the Freedom of Information Act, 18 Op. OLC 10 (1994). Indeed, the “Twelfth Amendment was brought about” to avoid the “manifestly intolerable” sit

uation that occurred “[d]uring the John Adams administra

tion,” when “we had a Presiden t and Vice-President of dif

ferent parties.” Ray v. Blair , 343 U. S. 214, 224, n. 11 (1952). The President and Vice President together “are the senior officials of the Executive Branch of government” and therefore “must formulate, explain, advocate, and defend policies” of the President’s administration. Payment of Ex

penses Associated With Travel by the President and Vice President, 6 Op. OLC 214, 215 (1982). As the President’s second in command, the Vice President has historically performed important functions “at the will and as the representative of the President.” Participation of the Vice President in the Affairs of the Executive Branch, 1 Supp. Op. OLC 214, 220 (1961). President Woodrow Wil

son’s Vice President, for inst ance, “presided over a few cab

inet meetings while Wilson was in France negotiating” the Treaty of Versailles after World War I. H. Relyea, The Law: The Executive Office of the Vi ce President: Constitutional and Legal Considerations, 40 Presidential Studies Q. 327,23 Cite as: 603 U. S. ____ (2024)

Opinion of the Court 328 (2010). During President Franklin Roosevelt’s admin

istration, the Vice President “became a regular participant in cabinet deliberations—a practice that was continued by each succeeding president.” Ibid. And when President Dwight Eisenhower “su ffered three major illnesses while in office . . . Vice President Richard Nixon consulted with the Cabinet and developed a proced ure for relaying important matters to the President.” Presidential Succession and Del

egation in Case of Disability, 5 Op. OLC 91, 102 (1981). At the President’s discretion, “the Vice President may engage in activities ranging into the highest levels of diplomacy and negotiation and may do so anywhere in the world.” 1 Supp. Op. OLC, at 220. Domestically, he may act as the President’s delegate to perform any duties “co-extensive with the scope of the President’s power of delegation.” Ibid. Whenever the President and Vice President discuss their official responsibilities, they en gage in official conduct. Pre

siding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a consti

tutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allega

tions that Trump attempted to pressure the Vice President to take particular acts in conne ction with his role at the cer

tification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct. The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. Ibid. Despite the Vice President’s expansive role of advising and assisting the President within the Execu

tive Branch, the Vice President’s Article I responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.” Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of24 TRUMP v. UNITED STATES

Opinion of the Court Interest Problems Arising Out of the President’s Nomina

tion of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974). With respect to the certification proceeding in particular, Congress has legislat ed extensively to define the Vice President’s role in the counting of the electoral votes,

see, e.g. , 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Gov

ernment may argue that consid eration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald , 457 U. S., at 754; see supra , at 14. At the same time, however, the President may frequently rely on the Vice President in hi s capacity as President of the Senate to advance the Presiden t’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote ma y be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions. It is ultimately the Gove rnment’s burden to rebut the presumption of immunity. We therefore remand to the Dis

trict Court to assess in the fi rst instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.

3 The indictment’s remaining allegations cover a broad range of conduct. Unlike the allegations describing25 Cite as: 603 U. S. ____ (2024)

Opinion of the Court
Trump’s communications with the Justice Department and the Vice President, these remaining allegations involve Trump’s interactions with persons outside the Executive Branch: state officials, private parties, and the general pub

lic. Many of the remaining allegations, for instance, cover at great length events arising out of communications that Trump and his co-conspirators initiated with state legisla

tors and election officials in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin regarding those States’ certi

fication of electors. See App. 192–207, Indictment ¶¶13– 52. Specifically, the indictment alleges that Trump and his co-conspirators attempted to convince those officials that election fraud had tainted the popular vote count in their States, and thus electoral votes for Trump’s opponent needed to be changed to electoral votes for Trump. See id

., at 185–186, ¶10(a). After Trump failed to convince those officials to alter their state proc esses, he and his co-conspirators allegedly developed a plan “to marshal individuals who would have served as [Trump’s] electors, had he won the popular vote” in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin, “and cause those in

dividuals to make and send to the Vice President and Con

gress false certifications that they were legitimate electors.” Id ., at 208, ¶53. If the plan worked, “the submission of these fraudulent slates” would position the Vice President to “open and count the fraudulen t votes” at the certification proceeding and set up “a fake controversy that would derail the proper certification of Biden as president-elect.” Id ., at 208–209, ¶¶53, 54(b). According to the indictment, Trump used his campaign staff to effectuate the plan. See, e.g. , id

., at 210, 212–213, ¶¶55, 63. On the same day that the legit

imate electors met in their resp ective jurisdictions to cast their votes, the indictment alleges that Trump’s “fraudu

lent electors convened sham proceedings in the seven tar

-26 TRUMP v. UNITED STATES

Opinion of the Court geted states to cast fraudulent electoral ballots” in his fa

vor. Id ., at 214, ¶66. Those ballots “were mailed to the President of the Senate, the Archivist of the United States, and others.” Ibid ., ¶67. At oral argument, Trump appeared to concede that at least some of these acts—those involving “private actors” who “helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceed

ing” at the direction of Trump and a co-conspirator—entail “private” conduct. Tr. of Oral Arg. 29–30. He later as

serted, however, that asking “the chairwoman of the Repub

lican National Committee . . . to gather electors” qualifies as official conduct because “the organization of alternate slates of electors is based on, for example, the historical ex

ample of President Grant as something that was done pur

suant to and ancillary and preparatory to the exercise of ” a core Presidential power. Id. , at 37; see also id. , at 25 (dis

cussing the “historical precedent . . . of President Grant sending federal troops to Louisiana and Mississippi in 1876 to make sure that the Repub lican electors got certified in those two cases, which delivered the election to Rutherford B. Hayes”). He also argued that it is “[a]bsolutely an official act for the president to communi cate with state officials on . . . the integrity of a federal election.” Id. , at 38. The Gov

ernment disagreed, contending that this alleged conduct does not qualify as “official conduct” but as “campaign con

duct.” Id. , at 124–125. On Trump’s view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. Of course, the President’s duty to “take Care that the Laws be faithfully executed” plainly encompasses enforcement of federal elec

tion laws passed by Congress. Art. II, §3. And the Presi

dent’s broad power to speak on matters of public concern does not exclude his public communications regarding the fairness and integrity of federal elections simply because he27 Cite as: 603 U. S. ____ (2024)

Opinion of the Court is running for re-election. Cf. Hawaii , 585 U. S., at 701. Similarly, the President may speak on and discuss such matters with state officials—even when no specific federal responsibility requires his communication—to encourage them to act in a manner that promotes the President’s view of the public good. As the Government sees it, however, these allegations en

compass nothing more than Trump’s “private scheme with private actors.” Brief for Unit ed States 44. In its view, Trump can point to no plausible source of authority ena

bling the President to not only organize alternate slates of electors but also cause those electors—unapproved by any state official—to transmit votes to the President of the Sen

ate for counting at the certification proceeding, thus inter

fering with the votes of States ’ properly appointed electors. Indeed, the Constitution commits to the States the power to “appoint” Presidential electors “in such Manner as the Legislature thereof may direct.” Art. II, §1, cl. 2; see Bur

roughs v. United States , 290 U. S. 534, 544 (1934). “Article II, §1’s appointments power,” we have said, “gives the States far-reaching authority over presidential electors, ab

sent some other consti tutional constraint.” Chiafalo v. Washington , 591 U. S. 578, 588–589 (2020). By contrast, the Federal Government’s role in appointing electors is lim

ited. Congress may prescribe when the state-appointed electors shall meet, and it count s and certifies their votes. Art. II, §1, cls. 3, 4. The President, meanwhile, plays no direct role in the process, nor does he have authority to con

trol the state officials who do. And the Framers, wary of “cabal, intrigue and corruption,” specifically excluded from service as electors “all those who from situation might be suspected of too great devotion to the president in office.” The Federalist No. 68, at 459 (A. Hamilton); see Art. II, §1, cl. 2. Determining whose characteri zation may be correct, and with respect to which conduct, requires a close analysis of28 TRUMP v. UNITED STATES

Opinion of the Court the indictment’s extensive and interrelated allegations. See App. 192–215, Indictment ¶¶13–69. Unlike Trump’s alleged interactions with the Justice Department, this al

leged conduct cannot be neatly categorized as falling within a particular Presidential function. The necessary analysis is instead fact specific, requiring assessment of numerous alleged interactions with a wide variety of state officials and private persons. And the parties’ brief comments at oral argument indicate that they starkly disagree on the characterization of these allegations. The concerns we noted at the outset—the expedition of this case, the lack of factual analysis by the lower courts, and the absence of per

tinent briefing by the parties—thus become more promi

nent. We accordingly remand to the District Court to de

termine in the first instance—with the benefit of briefing we lack—whether Trump’s conduct in this area qualifies as official or unofficial.

4 Finally, the indictment contains various allegations re

garding Trump’s conduct in connection with the events of January 6 itself. It alleges that leading up to the January 6 certification proceeding, Trum p issued a series of Tweets (to his nearly 89 million followers) encouraging his support

ers to travel to Washington, D. C., on that day. See, e.g. , App. 221, 225–227, Indictment ¶¶87–88, 96, 100. Trump and his co-conspirators addresse d the gathered public that morning, asserting that certain States wanted to recertify their electoral votes and that the Vice President had the power to send those States’ ba llots back for recertification. Id. , at 228–230, ¶¶103–104. Trump then allegedly “di

rected the crowd in front of him to go to the Capitol” to pres

sure the Vice President to do so at the certification proceed

ing. Id. , at 228–230, ¶104. When it became public that the Vice President would not use hi s role at the certification proceeding to determine which electoral votes should be29 Cite as: 603 U. S. ____ (2024)

Opinion of the Court counted, the crowd gathered at the Capitol “broke through barriers cordoning off the Capitol grounds” and eventually “broke into the building.” Id ., at 230–231, ¶¶107, 109. The alleged conduct largely consists of Trump’s commu

nications in the form of Tweets and a public address. The President possesses “extraordi nary power to speak to his fellow citizens and on their behalf.” Hawaii , 585 U. S., at 701; cf. Lindke v. Freed , 601 U. S. 187, 191 (2024). As the sole person charged by the Constitution with executing the laws of the United States, the President oversees—and thus will frequently speak publicly about—a vast array of activ

ities that touch on nearly ever y aspect of American life. In

deed, a long-recognized aspect of Presidential power is us

ing the office’s “bully pulpit” to persuade Americans, including by speaking forcefully or critically, in ways that the President believes would advance the public interest. He is even expected to comment on those matters of public concern that may not directly implicate the activities of the Federal Government—for instance, to comfort the Nation in the wake of an emergency or tragedy. For these reasons, most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official re

sponsibilities. There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of “content, form, and context” will necessarily in

form the inquiry. Snyder v. Phelps , 562 U. S. 443, 453 (2011) (internal quotation marks omitted). But “there is not always a clear line between [the President’s] personal and official affairs.” Mazars , 591 U. S., at 868. The analysis therefore must be fact specific and may prove to be chal

lenging. The indictment reflects these challenges. It includes only30 TRUMP v. UNITED STATES

Opinion of the Court select Tweets and brief snippets of the speech Trump deliv

ered on the morning of January 6, omitting its full text or context. See App. 228–230, Indictment ¶104. Whether the Tweets, that speech, and Trump’s other communications on January 6 involve official conduct may depend on the con

tent and context of each. Knowing, for instance, what else was said contemporaneous to the excerpted communica

tions, or who was involved in transmitting the electronic communications and in organizing the rally, could be rele

vant to the classification of each communication. This nec

essarily factbound analysis is best performed initially by the District Court. We therefore remand to the District Court to determine in the first instance whether this al

leged conduct is official or unofficial.

C The essence of immunity “is its possessor’s entitlement not to have to answer for his conduct” in court. Mitchell

, 472 U. S., at 525. Presidents therefore cannot be indicted based on conduct for which they are immune from prosecu

tion. As we have explained, the indictment here alleges at least some such conduct. See Part III–B–1, supra . On re

mand, the District Court must carefully analyze the indict

ment’s remaining allegations to determine whether they too involve conduct for which a President must be immune from prosecution. And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct. The Government does not dispute that if Trump is enti

tled to immunity for certain official acts, he may not “be held criminally liable” based on those acts. Brief for United States 46. But it nevertheless contends that a jury could “consider” evidence concerning the President’s official acts “for limited and specified purpos es,” and that such evidence would “be admissible to prove, for example, [Trump’s] knowledge or notice of the falsity of his election-fraud31 Cite as: 603 U. S. ____ (2024)

Opinion of the Court

claims.” Id. , at 46, 48. That proposal threatens to eviscer

ate the immunity we have recognized. It would permit a prosecutor to do indirectly wh at he cannot do directly—in

vite the jury to examine acts for which a President is im

mune from prosecution to nonetheless prove his liability on any charge. But “[t]he Constitution deals with substance, not shadows.” Cummings v. Missouri , 4 Wall. 277, 325 (1867). And the Government’s position is untenable in light of the separation of powers principles we have outlined. If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the “intended effect” of immunity would be defeated. Fitzger

ald , 457 U. S., at 756. The President’s immune conduct would be subject to examination by a jury on the basis of generally applicable criminal laws. Use of evidence about such conduct, even when an indictment alleges only unoffi

cial conduct, would thereby heighten the prospect that the President’s official decisionmaking will be distorted. See Clinton , 520 U. S., at 694, n. 19. The Government asserts that these weighty concerns can be managed by the District Court through the use of “evi

dentiary rulings” and “jury inst ructions.” Brief for United States 46. But such tools are unlikely to protect adequately the President’s constitutional prerogatives. Presidential acts frequently deal with “ma tters likely to ‘arouse the most intense feelings.’ ” Fitzgerald , 457 U. S., at 752 (quoting Pierson , 386 U. S., at 554). Allowing prosecutors to ask or suggest that the jury probe official acts for which the Pres

ident is immune would thus raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office. The prosaic tools on which the Government would have courts rely are an inadequate safeguard against the peculiar con

stitutional concerns implicated in the prosecution of a for

mer President. Cf. Nixon , 418 U. S., at 706. Although such32 TRUMP v. UNITED STATES

Opinion of the Court tools may suffice to protect the constitutional rights of indi

vidual criminal defendants, the interests that underlie Presidential immunity seek to protect not the President himself, but the institution of the Presidency. 3

IV A Trump asserts a far broader immunity than the limited one we have recognized. He contends that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution. Brief for Peti

tioner 16. The text of the Clause provides little support for such an absolute immunity. It states that an impeachment judg

ment “shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Art. I, §3, cl. 7. It then specifies that “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Ibid . (emphasis added).

——————

3 J USTICE B ARRETT disagrees, arguing that in a bribery prosecution, for instance, excluding “any mention” of the official act associated with the bribe “would hamstring the prosecution.” Post , at 6 (opinion concurring in part); cf. post , at 25–27 (opinion of S OTOMAYOR , J.). But of course the prosecutor may point to the public reco rd to show the fact that the Pres

ident performed the official act. An d the prosecutor may admit evidence of what the President allegedly dema nded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U. S. C. §201(b)(2). What the prosecutor may not do, however, is admit testimony or priv ate records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the Pr esident’s motivations for his official actions and to second-guess their propri ety. As we have explained, such inspection would be “highl y intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties. Fitzgerald , 457 U. S., at 745, 756 (quoting Spalding v. Vilas , 161 U. S. 483, 498 (1896)); see supra, at 18. And such second-guessing would “threaten the independence or ef

fectiveness of the Executive.” Trump v. Vance , 591 U. S. 786, 805 (2020).33 Cite as: 603 U. S. ____ (2024)

Opinion of the Court The Clause both limits the consequences of an impeach

ment judgment and clarifies that notwithstanding such judgment, subsequent prosecut ion may proceed. By its own terms, the Clause does not address whether and on what conduct a President may be prosecuted if he was never im

peached and convicted. Historical evidence likewise lends little support to Trump’s position. For example, Justice Story reasoned that without the Clause’s clarification that “Indictment, Trial, Judgment and Punishment” may nevertheless follow Sen

ate conviction, “it might be matter of extreme doubt, whether . . . a second trial for the same offence could be had, either after an acquittal, or a conviction in the court of im

peachments.” 2 J. Story, Commentaries on the Constitu

tion of the United States §780, p. 251 (1833). James Wilson, who served on the Committee that drafted the Clause and later as a Justice of this Cou rt, similarly concluded that ac

quittal of impeachment charges posed no bar to subsequent prosecution. See 2 Documentary History of the Ratification of the Constitution 492 (M. Jensen ed. 1979). And contrary to Trump’s contention, Alexander Hamilton did not disa

gree. The Federalist Papers on which Trump relies, see Brief for Petitioner 17–18, concerned the checks available against a sitting President. Hamilton noted that unlike “the King of Great-Britain,” th e President “would be liable to be impeached” and “removed from office,” and “would af

terwards be liable to prosecution and punishment.” The Federalist No. 69, at 463; see also id ., No. 77, at 520 (ex

plaining that the President is “at all times liable to im

peachment, trial, dismission from office . . . and to the for

feiture of life and estate by subsequent prosecution”). Hamilton did not endorse or even consider whether the Im

peachment Judgment Clause immunizes a former Presi

dent from prosecution. The implication of Trump’s th eory is that a President who evades impeachment for one reason or another during his34 TRUMP v. UNITED STATES

Opinion of the Court

term in office can never be held accountable for his criminal acts in the ordinary course of law. So if a President man

ages to conceal certain crimes throughout his Presidency, or if Congress is unable to muster the political will to im

peach the President for his crimes, then they must forever remain impervious to prosecution. Impeachment is a political process by which Congress can remove a President who has committed “Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, §4. Transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government.

B The Government for its part takes a similarly broad view, contending that the President enjoys no immunity from criminal prosecution for any action. It maintains this view despite agreeing with much of our analysis. For instance, the Government does not dispute that Con

gress may not criminalize Presidential conduct within the President’s “conclusive and pr eclusive” constitutional au

thority. See Tr. of Oral Arg. 133 (“[C]ore powers . . . can’t be regulated at all, like the pardon power and veto.”); see also id. , at 84–85. And it too accords protection to Presiden

tial conduct if subjecting that conduct to generally applica

ble laws would “raise serious constitutional questions re

garding the President’s authority” or cause a “possible conflict with the President’s constitutional prerogatives.” Application of 28 U. S. C. §458 to Presidential Appoint

ments of Federal Judges, 19 Op. OLC 350, 351–352 (1995); see Brief for United States 26–29; Tr. of Oral Arg. 78. In

deed, the Executive Branch has long held that view. The Office of Legal Counsel has recognized, for instance, that a federal statute generally prohibiting appointments to “ ‘any office or duty in any court’ ” of persons within certain de

grees of consanguinity to the judges of such courts would, if35 Cite as: 603 U. S. ____ (2024)

Opinion of the Court applied to the President, infr inge his power to appoint fed

eral judges, thereby raising a serious constitutional ques

tion. 19 Op. OLC, at 350 (quoting 28 U. S. C. §458); see id.

, at 350–352. So it viewed such a statute as not applying to the President. Likewise, it has narrowly construed a crim

inal prohibition on grassroots lobbying to avoid the consti

tutional issues that would otherwise arise, reasoning that the statute should not “be construed to prohibit the Presi

dent or executive branch agen cies from engaging in a gen

eral open dialogue with the public on the Administration’s programs and policies.” Constraints Imposed by 18 U. S. C. §1913 on Lobbying Efforts, 13 Op. OLC 300, 304 (1989); see id ., at 304–306. The Government thus broadly agrees that the President’s official acts are entitled to some degree of constitutional protection. And with respect to the allegations in the in

dictment before us, the Govern ment agrees that at least some of the alleged conduct involv es official acts. See Tr. of Oral Arg. 125; cf. id. , at 128. Yet the Government contends that the President should not be considered immune from prosecution for those offi

cial acts. See Brief for United States 9. On the Govern

ment’s view, as-applied challenges in the course of the trial suffice to protect Article II inte rests, and review of a district court’s decisions on such challenges should be deferred un

til after trial. See Tr. of Oral Arg. 69, 79–80, 154–158. If the President is instead immune from prosecution, a dis

trict court’s denial of immunity would be appealable before trial. See Mitchell , 472 U. S., at 524–530 (explaining that questions of immunity are reviewable before trial because the essence of immunity is the entitlement not to be subject to suit). The Government asserts that the “[r]obust safeguards” available in typical criminal proceedings alleviate the need for pretrial review. Brief for United States 20 (boldface and36 TRUMP v. UNITED STATES

Opinion of the Court emphasis omitted). First, it points to the Justice Depart

ment’s “longstanding commitment to the impartial enforce

ment of the law,” id. , at 21, as well as the criminal justice system’s further protections: grand juries, a defendant’s procedural rights during trial, and the requirement that the Government prove its case beyond a reasonable doubt, id.

, at 22. Next, it contends that “existing principles of statu

tory construction and as-applied constitutional challenges” adequately address the separation of powers concerns in

volved in applying generally applicable criminal laws to a President. Id. , at 29. Finally, the Government cites certain defenses that would be available to the President in a par

ticular prosecution, such as the public-authority defense or the advice of the Attorney General. Id. , at 29–30; see Nar

done v. United States , 302 U. S. 379, 384 (1937); Tr. of Oral Arg. 107–108. These safeguards, though important, do not alleviate the need for pretrial review. They fail to address the fact that under our system of separated powers, criminal prohibi

tions cannot apply to certain Presidential conduct to begin with. As we have explained, when the President acts pur

suant to his exclusive constitutional powers, Congress can

not—as a structural matter—regulate such actions, and courts cannot review them. See Part II–A, supra . And he is at least presumptively immune from prosecution for his other official actions. See Part II–B, supra

. Questions about whether the President may be held lia

ble for particular actions, consistent with the separation of powers, must be addressed at the outset of a proceeding. Even if the President were ultimately not found liable for certain official actions, the possibility of an extended pro

ceeding alone may render him “unduly cautious in the dis

charge of his official duties.” Fitzgerald , 457 U. S., at 752,

n. 32. Vulnerability “‘to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute.’ ” Id. , at 752–753, n. 32 (quoting37 Cite as: 603 U. S. ____ (2024)

Opinion of the Court Gregoire v. Biddle , 177 F. 2d 579, 581 (CA2 1949) (Hand, L., C. J.)). The Constitution does not tolerate such impedi

ments to “the effective fun ctioning of government.” Fitzger

ald , 457 U. S., at 751. As for the Government’s assurances that prosecutors and grand juries will not permit political or baseless prosecu

tions from advancing in the first place, those assurances are available to every criminal defendant and fail to account for the President’s “unique position in the constitutional scheme.” Id. , at 749. We do not ordinarily decline to decide significant constitutional questions based on the Govern

ment’s promises of good faith. See United States v. Stevens

, 559 U. S. 460, 480 (2010) (“We would not uphold an uncon

stitutional statute merely be cause the Government prom

ised to use it responsibly.”). Nor do we do so today.

C As for the dissents, they strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today—conclude that imm unity extends to official dis

cussions between the President and his Attorney General, and then remand to the lower courts to determine “in the first instance” whether and to what extent Trump’s remain

ing alleged conduct is entitled to immunity. Supra , at 24, 28, 30. The principal dissent’s starting premise—that unlike Speech and Debate Clause immuni ty, no constitutional text supports Presidential immunity, see post , at 4–6 (opinion of S OTOMAYOR , J.)—is one that the Court rejected decades ago as “unpersuasive.” Fitzgerald , 457 U. S., at 750, n. 31; see also Nixon , 418 U. S., at 705–706, n. 16 (rejecting unani

mously a similar argument in the analogous executive priv

ilege context). “[A] specific textual basis has not been con

sidered a prerequisite to the recognition of immunity.” Fitzgerald , 457 U. S., at 750, n. 31. Nor is that premise cor

rect. True, there is no “Presidential immunity clause” in38 TRUMP v. UNITED STATES

Opinion of the Court

the Constitution. But there is no “ ‘separation of powers clause’ ” either. Seila Law , 591 U. S., at 227. Yet that doc

trine is undoubtedly carved into the Constitution’s text by its three articles separating powers and vesting the Execu

tive power solely in the President. See ibid. And the Court’s prior decisions, such as Nixon and Fitzgerald , have long recognized that doctrine as mandating certain Presi

dential privileges and immunities, even though the Consti

tution contains no explicit “provision for immunity.” Post

, at 4; see Part II–B–1, supra . Neither the dissents nor the Government disavow any of those prior decisions. See Tr. of Oral Arg. 76–77. The principal dissent then cites the Impeachment Judg

ment Clause, arguing that it “clearly contemplates that a former President may be subject to criminal prosecution.” Post , at 6. But that Clause does not indicate whether a for

mer President may, consistent with the separation of pow

ers, be prosecuted for his official conduct in particular. See

supra , at 32–33. And the assortment of historical sources the principal dissent cites are unhelpful for the same rea

son. See post , at 6–8. As the Court has previously noted, relevant historical evidence on the question of Presidential immunity is of a “fragmentary character.” Fitzgerald , 457 U. S., at 752, n. 31; see also Clinton , 520 U. S., at 696–697; cf. Youngstown , 343 U. S., at 634 (Jackson, J., concurring) (noting “the poverty of really useful and unambiguous au

thority applicable to concrete problems of executive power”). “[T]he most compe lling arguments,” therefore, “arise from the Constitution’s separation of powers and the Judiciary’s historic understand ing of that doctrine.” Fitz

gerald , 457 U. S., at 752, n. 31

. The Court’s prior admonition is evident in the principal dissent’s citations. Some of its cherry-picked sources do not even discuss the President in particular. See, e.g. , post , at 7–8 (citing 2 Debates on the Constitution 177 (J. Elliot ed. 1836); 2 J. Story, Commentaries on the Constitution of the39 Cite as: 603 U. S. ____ (2024)

Opinion of the Court United States §780, pp. 250–251 (1833)). And none of them indicate whether he may be prosecuted for his official con

duct. See, e.g. , post , at 6, 7, n. 2 (citing The Federalist No. 69; 4 Debates on the Constitution, at 109). The principal dissent’s most compelling piece of evidence consists of ex

cerpted statements of Charles Pinckney from an 1800 Sen

ate debate. See post , at 7. But those statements reflect only the now-discredited argument that any immunity not ex

pressly mentioned in the Consti tution must not exist. See 3 Records of the Federal Convention of 1787, pp. 384–385 (M. Farrand ed. 1911). And Pinckney is not exactly a relia

ble authority on the separation of powers: He went on to state on the same day that “it was wrong to give the nomi

nation of Judges to the President”—an opinion expressly re

jected by the Framers. Id. , at 385. Given the Framers’ de

sire for an energetic and vigorous President, the principal dissent’s view that the Consti tution they designed allows all his actions to be subject to prosecution—even the exer

cise of powers it grants excl usively to him—defies credulity. Unable to muster any meaning ful textual or historical support, the principal dissent suggests that there is an “es

tablished understanding” that “former Presidents are an

swerable to the criminal law for their official acts.” Post , at 9. Conspicuously absent is mention of the fact that since the founding, no President has ever faced criminal charges—let alone for his condu ct in office. And accordingly no court has ever been faced with the question of a Presi

dent’s immunity from prosecution. All that our Nation’s practice establishes on the subject is silence. Coming up short on reasoning, the dissents repeatedly level variations of the accusation that the Court has ren

dered the President “above the law.” See, e.g. , post , at 1, 3, 11, 12, 21, 30 (opinion of S OTOMAYOR , J.); post , at 9, 10, 11, 12, 13, 19 (opinion of J ACKSON , J.). As before, that “rhetor

ically chilling” contention is “wholly unjustified.” Fitzger

-40 TRUMP v. UNITED STATES

Opinion of the Court

ald , 457 U. S., at 758, n. 41. Like everyone else, the Presi

dent is subject to prosecution in his unofficial capacity. But unlike anyone else, the President is a branch of govern

ment, and the Constitution vests in him sweeping powers and duties. Accounting for that reality—and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would—does not place him above the law; it preserves the basic structure of the Constitution from which that law derives. The dissents’ positions in the end boil down to ignoring the Constitution’s separation of powers and the Court’s precedent and instead fear mongering on the basis of ex

treme hypotheticals about a future where the President “feels empowered to violate federal criminal law.” Post , at 18 (opinion of S OTOMAYOR , J.); see post , at 26, 29–30; post , at 8–9, 10, 12, 16, 20–21 (opinion of J ACKSON , J.). The dis

sents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive Presi

dent free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. For instance, Section 371—which has been charged in this case—is a broadly word ed criminal statute that can cover “ ‘any conspiracy for the purpose of impairing, ob

structing or defeating the lawful function of any depart

ment of Government.’ ” United States v. Johnson , 383 U. S. 169, 172 (1966) (quoting Haas v. Henkel , 216 U. S. 462, 479 (1910)). Virtually every President is criticized for insuffi

ciently enforcing some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration may assert that a pre

vious President violated that broad statute. Without im

munity, such types of prosecutions of ex-Presidents could quickly become routine. The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to41 Cite as: 603 U. S. ____ (2024)

Opinion of the Court
avoid. Ignoring those risks, the dissents are instead con

tent to leave the preservation of our system of separated powers up to the good faith of prosecutors. Finally, the principal dissent finds it “troubling” that the Court does not “designate any course of conduct alleged in the indictment as private.” Post , at 27. Despite the unprec

edented nature of this case, the significant constitutional questions that it raises, its expedited treatment in the lower courts and in this Court, the lack of factual analysis in the lower courts, and the lack of br iefing on how to categorize the conduct alleged, the principal dissent would go ahead and declare all of it unofficial. The other dissent, mean

while, analyzes the case under comprehensive models and paradigms of its own concoction and accuses the Court of providing “no meaningful guidance about how to apply [the] new paradigm or how to catego rize a President’s conduct.” Post , at 13 (opinion of J ACKSON , J.). It would have us ex

haustively define every application of Presidential immun

ity. See post , at 13–14. Our dissenting colleagues exude an impressive infallibility. While their confidence may be in

spiring, the Court adheres to time-tested practices in

stead—deciding what is required to dispose of this case and remanding after “revers[ing] on a threshold question,” Zi

votofsky , 566 U. S., at 201, to obtain “guidance from the lit

igants [and] the court below,” Vidal v. Elster , 602 U. S. 286, 328 (2024) (S OTOMAYOR , J., concurring in judgment).

V This case poses a question of lasting significance: When may a former President be prosec uted for official acts taken during his Presidency? Our Nation has never before needed an answer. But in addressing that question today, unlike the political branches and the p ublic at large, we cannot af

ford to fixate exclusively, or even primarily, on present exi

gencies. In a case like this one, focusing on “transient re

sults” may have profound consequences for the separation42 TRUMP v. UNITED STATES

Opinion of the Court of powers and for the future of our Republic. Youngstown

, 343 U. S., at 634 (Jackson, J., concurring). Our perspective must be more farsighted, for “[t]he peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less co nstitutional.” Chief Justice John Marshall, A Friend of the Constitution No. V, Alexan

dria Gazette, July 5, 1819, in John Marshall’s Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969). Our first President had such a perspective. In his Fare

well Address, George Washington reminded the Nation that “a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable.” 35 Writ

ings of George Washington 226 (J. Fitzpatrick ed. 1940). A government “too feeble to withstand the enterprises of fac

tion,” he warned, could lead to the “frightful despotism” of “alternate domination of one faction over another, sharp

ened by the spirit of revenge.” Id. , at 226–227. And the way to avoid that cycle, he ex plained, was to ensure that government powers remained “properly distributed and ad

justed.” Id. , at 226. It is these enduring principles that guide our decision in this case. The President enjoys no immunity for his unoffi

cial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the re

sponsibilities of the Executiv e Branch under the Constitu

tion. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive. The President ther efore may not be prosecuted for exercising his core constitu tional powers, and he is enti

tled, at a minimum, to a presumptive immunity from pros

ecution for all his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of pol

itics, policy, or party. The judgment of the Court of Appeals for the D. C. Circuit is vacated, and the case is remanded for further proceedings43 Cite as: 603 U. S. ____ (2024)

Opinion of the Court
consistent with this opinion. It is so ordered._________________

_________________ 1 Cite as: 603 U. S. ____ (2024)

T HOMAS , J., concurring 

## SUPREME COURT OF THE UNITED STATES

No. 23–939

DONALD J. TRUMP, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[July 1, 2024]

J USTICE T HOMAS , concurring. Few things would threaten ou r constitutional order more than criminally prosecuting a former President for his offi

cial acts. Fortunately, the Constitution does not permit us to chart such a dangerous course. As the Court forcefully explains, the Framers “deemed an energetic executive es

sential to . . . the security of liberty,” and our “system of sep

arated powers” accordingly insulates the President from prosecution for his official acts. Ante , at 10, 42 (internal quotation marks omitted). To conclude otherwise would hamstring the vigorous Executive that our Constitution en

visions. “While the separati on of powers may prevent us from righting every wrong, it d oes so in order to ensure that we do not lose liberty.” Morrison v. Olson , 487 U. S. 654, 710–711 (1988) (Scalia, J., dissenting). I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a pri

vate citizen as Special Counsel to prosecute a former Presi

dent on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By re

quiring that Congress create fe deral offices “by Law,” the Constitution imposes an important check against the Pres

ident—he cannot create offices at his pleasure. If there is2 TRUMP v. UNITED STATES

T HOMAS , J., concurring no law establishing the office that the Special Counsel oc

cupies, then he cannot proceed with this prosecution. A pri

vate citizen cannot criminally prosecute anyone, let alone a former President. No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue con

stitute crimes. If this unprec edented prosecution is to pro

ceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.

I
The Constitution sets forth how an office may be created and how it may be filled. The Appointments Clause pro

vides: “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Am

bassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein oth

erwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appoint

ment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Department.” Art. II, §2, cl. 2. The constitutional process for filling an office is plain from this text. The default manner for appointing “Officers of the United States” is nomination by the President and confirmation by the Senate. Ibid . “But the Clause provides a limited exception for the appointment of inferior officers: Congress may ‘by Law’ authorize” one of three specified ac

-3 Cite as: 603 U. S. ____ (2024)

T HOMAS , J., concurring tors “to appoint inferior office rs without the advice and con

sent of the Senate.” NLRB v. SW General, Inc. , 580 U. S. 288, 312 (2017) (T HOMAS , J., concurring). As relevant here, a “Hea[d] of Department”—such as the Attorney General— is one such actor that Congre ss may authorize “by Law” to appoint inferior officers without senatorial confirmation. Art. II, §2, cl. 2. Before the President or a Department Head can appoint any officer, however, the Cons titution requires that the un

derlying office be “established by Law.” 1 The Constitution itself creates some offices, most obviously that of the Presi

dent and Vice President. See §1. Although the Constitution contemplates that there will be “other Officers of the United States, whose Appointments are not herein otherwise pro

vided for,” it clearly requires that those offices “shall be es

tablished by Law.” §2, cl. 2. And, “established by law” re

fers to an office that Congress creates “by statute.” Lucia

v. SEC , 585 U. S. 237, 254 (2018) (T HOMAS , J., concurring); see also United States v. Maurice , 26 F. Cas. 1211, 1213 (No. 15,747) (CC Va. 1823) (Marshall, C. J.). The limitation on the President’s power to create offices grew out of the Founders’ experience with the English mon

archy. The King could wield significant power by both cre

ating and filling offices as he saw fit. He was “emphatically and truly styled the fountain of honor. He not only ap

point[ed] to all offices, but [could] create offices.” The Fed

eralist No. 69, p. 421 (C. Rossiter ed. 1961); see also 1 W. Blackstone, Commentaries on the Laws of England 271 (T.

——————

1 Although a Government official may also be a “nonofficer employe[e],” I set aside that category because it is difficult to see how an official exer

cising the Department of Justice’s du ties to enforce the criminal law by leading a prosecution could be anything but an officer. Lucia v. SEC

, 585 U. S. 237, 253, n. 1 (2018) (T HOMAS , J., concurring); see SW General

, 580 U. S., at 314 (opinion of T HOMAS , J.). If the Special Counsel were a nonofficer employee, the constitutional problems with this prosecution would only be more serious. For now, I assume without deciding that the Special Counsel is an officer.4 TRUMP v. UNITED STATES

T HOMAS , J., concurring Cooley ed. 1871) (“[A]s the king may create new titles, so may he create new offices”). That ability to create offices raised many “concerns about the King’s ability to amass too much power”; the King could both create a multitude of of

fices and then fill them with his supporters. J. Mascott, Who Are “Officers of the United States”? 70 Stan. L. Rev. 443, 492 (2018) (Mascott); see also G. Wood, The Creation of the American Republic 1776–1787, p. 143 (1969) (describ

ing “the power of appointment to offices” as “the most insid

ious and powerful weapon of eighteenth-century despot

ism”); T. Paine, Common Sense (1776), reprinted in The Great Works of Thomas Paine 11 (1877) (explaining that “the crown . . . derives its whole consequence merely from being the giver of places and pensions”). In fact, one of the grievances raised by the Am erican colonists in declaring their independence was that the King “ha[d] erected a mul

titude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.” Declaration of Independence ¶12. The Founders thus drafted the Con

stitution with “evidently a great inferiority in the power of the President, in this particular, to that of the British king.” The Federalist No. 69, at 421. The Founders broke from the monarchial model by giving the President the power to fill offices (with the Senate’s ap

proval), but not the power to create offices. They did so by “imposing the constitutional requirement that new officer positions be ‘established by Law’ rather than through a King-like custom of the head magistrate unilaterally creat

ing new offices.” Mascott 492–493 (footnote omitted); see also 1 Annals of Cong. 581–582 (1789) (“The powers relative to offices are partly Legislativ e and partly Executive. The Legislature creates the office, defines the powers, limits its duration, and annexes a compensation”); see also ibid . (de

scribing the power to “designat [e] the man to fill the office” as “of an Executive nature”). Th e Constitution thus “giv[es]Cite as: 603 U. S. ____ (2024) 5

T HOMAS , J., concurring Congress broad authority to establish and organize the Ex

ecutive Branch.” Seila Law LLC v. Consumer Financial Protection Bureau , 591 U. S. 197, 266 (2020) (K AGAN , J., concurring in judgment in part and dissenting in part). By keeping the ability to create offices out of the President’s hands, the Founders ensured that no President could uni

laterally create an army of office r positions to then fill with his supporters. Instead, our Constitution leaves it in the hands of the people’s elected representatives to determine whether new executive offices should exist. Longstanding practice from the founding to today com

ports with this original understanding that Congress must create offices by law. The First Congress, for instance, rou

tinely and explicitly created offices by statute. See, e

. g ., §35, 1 Stat. 92–93 (creating the offices of Attorney General and U. S. Attorney for each district); see also §§1–2, id ., at 50 (creating offices of Secretary of War and his Chief Clerk); ch. 12, §1, id ., at 65 (creating offices within the Department of Treasury for Secretary of the Treasury, a Comptroller, Auditor, Treasurer, Register, and Assistant to the Secre

tary). Still today, Congress cre ates the offices that the Ex

ecutive Branch may fill. For example, Congress has created several offices within the Department of Justice, including the offices of the Attorney Ge neral, Deputy Attorney Gen

eral, Associate Attorney General, Solicitor General, and As

sistant Attorneys General. See 28 U. S. C. §§503–506. For some agencies, Congress has al so granted the agency head the power to “appoint such officers and employees . . . as are necessary to execute the functions vested in him.” 7 U. S. C. §610(a) (Department of Agriculture); see also, e

. g ., 20 U. S. C. §3461 (Department of Education); 42 U. S. C. §913 (Department of Health and Human Services). In the past, Congress has at times expressly created of

fices similar to the position now occupied by the Special Counsel. Congress created an o ffice for a “special counsel”6 TRUMP v. UNITED STATES

T HOMAS , J., concurring to investigate the Teapot Dome Scandal and pursue prose

cutions. See ch. 16, 43 Stat. 6. And, a statute provided for “the appointment of an independent counsel” that we ad

dressed in Morrison v. Olson . See 28 U. S. C. §592. That statute lapsed, and Congress has not since reauthorized the appointment of an independent counsel. See §599. 2 We cannot ignore the importance that the Constitution places on who creates a federal office . To guard against tyr

anny, the Founders required that a federal office be “estab

lished by Law.” As James Madison cautioned, “[i]f there is any point in which the separation of the Legislative and Ex

ecutive powers ought to be maintained with greater cau

tion, it is that which relates to officers and offices.” 1 An

nals of Cong. 581. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to create and fill an office of his own accord.

II It is difficult to see how the Special Counsel has an office “established by Law,” as required by the Constitution. When the Attorney General appointed the Special Counsel, he did not identify any statute that clearly creates such an office. See Dept. of Justice Order No. 5559–2022 (Nov. 18, 2022). Nor did he rely on a statute granting him the au

thority to appoint officers as he deems fit, as the heads of some other agencies have. 3 See supra , at 5. Instead, the Attorney General relied upon several statutes of a general nature. See Order No. 5559–2022 (citing 28 U. S. C. §§509, 510, 515, 533).

——————

2 To be sure, a few Presidents have appointed “special prosecutors” without pointing to any express stat utory authorization. See generally T. Eastland, Ethics, Politics and the Independent Counsel 8–9 (1989) (de

scribing past uses of sp ecial prosecutors). But, this Court had no occa

sion to review the constitutionalit y of those prosecutors’ authority.

3 In fact, Congress gave the Attorney General the power to appoint “ad

ditional officers . . . as he deems necessary”—but, only for the Bureau of Prisons. 18 U. S. C. §4041.7 Cite as: 603 U. S. ____ (2024)

T HOMAS , J., concurring None of the statutes cited by the Attorney General ap

pears to create an office for the Special Counsel, and espe

cially not with the clarity typical of past statutes used for that purpose. See, e

. g ., 43 Stat. 6 (“[T]he President is fur

ther authorized and directed to appoint . . . special counsel who shall have charge and control of the prosecution of such litigation”). Sections 509 and 510 are generic provisions concerning the functions of the Attorney General and his ability to delegate authority to “any other officer, employee, or agency.” Section 515 contemplates an “attorney specially appointed by the Attorney General under law ,” thereby sug

gesting that such an attorney’s office must have already been created by some other law. (Emphasis added.) As for §533, it provides that “[t]he Attorney General may appoint officials . . . to detect and prosecute crimes against the United States.” (Emphasis added.) It is unclear whether an “official” is equivalent to an “officer” as used by the Con

stitution. See Lucia , 585 U. S., at 254–255 (opinion of T HOMAS , J.) (considering the meaning of “officer”). Regard

less, this provision would be a curious place for Congress to hide the creation of an office for a Special Counsel. It is placed in a chapter concerning the Federal Bureau of Inves

tigation (§§531–540d), not the separate chapters concern

ing U. S. Attorneys (§§541–550) or the now-lapsed Inde

pendent Counsel (§§591–599). 4 To be sure, the Court gave passing reference to the cited statutes as supporting the appointment of the Special Pros

ecutor in United States v. Nixon , 418 U. S. 683, 694 (1974), but it provided no analysis of those provisions’ text. Per

haps there is an answer for why these statutes create an office for the Special Counsel. But, before this consequen

-

——————

4 Regulations remain on the books that contemplate an “outside” Spe

cial Counsel, 28 CFR §600.1 (2023), but I doubt a regulation can create a federal office without underlying statutory authority to do so.8 TRUMP v. UNITED STATES

T HOMAS , J., concurring
tial prosecution proceeds, we should at least provide a ful

some explanation of why that is so. Even if the Special Counsel has a valid office, questions remain as to whether the Attorney General filled that office in compliance with the Appointments Clause. For example, it must be determined whether the Special Counsel is a principal or inferior officer. If the former, his appointment is invalid because the Special Counsel was not nominated by the President and confirmed by the Senate, as principal officers must be. Art. II, §2, cl. 2. Even if he is an inferior officer, the Attorney General could appoint him without Presidential nomination and senat orial confirmation only if “Congress . . . by law vest[ed] the Appointment” in the At

torney General as a “Hea[d] of Department.” Ibid . So, the Special Counsel’s appointment is invalid unless a statute created the Special Counsel’s office and gave the Attorney General the power to fill it “by Law.” Whether the Special Counsel’s office was “established by Law” is not a trifling technicality. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office. Given that the Special Counsel pur

ports to wield the Executive Br anch’s power to prosecute, the consequences are weighty. Our Constitution’s separa

tion of powers, including its se paration of the powers to cre

ate and fill offices, is “the absolutely central guarantee of a just Government” and the liberty that it secures for us all. Morrison , 487 U. S., at 697 (Scalia, J., dissenting). There is no prosecution that can justify imperiling it.

* * * In this case, there has been much discussion about ensur

ing that a President “is not above the law.” But, as the Court explains, the President’ s immunity from prosecution for his official acts is the law. The Constitution provides for9 Cite as: 603 U. S. ____ (2024)

T HOMAS , J., concurring “an energetic executive,” bec ause such an Executive is “es

sential to . . . the security of liberty.” Ante , at 10 (internal quotation marks omitted). Respecting the protections that the Constitution provides for the Office of the Presidency secures liberty. In that same vein, the Constitution also secures liberty by separating the powers to create and fill offices. And, there are serious questions whether the Attor

ney General has violated that structure by creating an of

fice of the Special Counsel that has not been established by law. Those questions must be answered before this prose

cution can proceed. We must respect the Constitution’s sep

aration of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee._________________

_________________ 1 Cite as: 603 U. S. ____ (2024)

B ARRETT , J., concurring in part 

## SUPREME COURT OF THE UNITED STATES

No. 23–939

DONALD J. TRUMP, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[July 1, 2024]

J USTICE B ARRETT , concurring in part. For reasons I explain below, I do not join Part III–C of the Court’s opinion. The remainder of the opinion is consistent with my view that the Constitution prohibits Congress from criminalizing a President’s exercise of core Article II powers and closely related conduct. That said, I would have framed the underlying legal issues differently. The Court describes the President’s constitutional protection from certain pros

ecutions as an “immunity.” As I see it, that term is short

hand for two propositions: The President can challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment, and he can obtain interlocu

tory review of the trial court’s ruling. There appears to be substantial agreement on the first point. Like the Court, the dissenting Justices and the Spe

cial Counsel all accept that some prosecutions of a Presi

dent’s official conduct may be unconstitutional. See post , at 16 (opinion of S OTOMAYOR , J.); Brief for United States 24– 30. As for interlocutory review, our precedent recognizes that resolving certain legal issues before trial is necessary to safeguard important consti tutional interests—here, Ex

ecutive Branch independence on matters that Article II as

signs to the President’s discretion. Properly conceived, the Pres ident’s constitutional protec

tion from prosecution is narrow. The Court leaves open the2 TRUMP v. UNITED STATES

B ARRETT , J., concurring in part possibility that the Constitution forbids prosecuting the President for any official conduct, instructing the lower courts to address that question in the first instance. See
ante , at 14. I would have answered it now. Though I agree that a President cannot be held criminally liable for conduct within his “conclusive and preclusive” authority and closely related acts, ante , at 8–9, the Constitution does not vest every exercise of executive powe r in the President’s sole dis

cretion, Youngstown Sheet & Tube Co. v. Sawyer , 343 U. S. 579, 637 (1952) (Jackson, J., concurring). 1 Congress has concurrent authority over many Government functions, and it may sometimes use that authority to regulate the President’s official conduct, including by criminal statute. Article II poses no barrier to prosecution in such cases. I would thus assess the validity of criminal charges pred

icated on most official acts— i.e. , those falling outside of the President’s core executive powe r—in two steps. The first question is whether the relevant criminal statute reaches the President’s official conduct. Not every broadly worded statute does. For example, §956 covers conspiracy to mur

der in a foreign country and does not expressly exclude the President’s decision to, say, order a hostage rescue mission abroad. 18 U. S. C. §956(a). The underlying murder stat

ute, however, covers only “unlawful” killings. §1111. The Office of Legal Counsel has in terpreted that phrase to re

flect a public-authority exceptio n for official acts involving the military and law enforcement. Memorandum from D. Barron, Acting Assistant Atty. Gen., to E. Holder, Atty.

——————

1 Consistent with our separation of powers precedent, I agree with the Court that the supervision and remova l of appointed, high ranking Jus

tice Department officials falls within the President’s core executive power. See Seila Law LLC v. Consumer Financial Protection Bureau

, 591 U. S. 197, 213–215 (2020); ante , at 19–21. I do not understand the Court to hold that all exercises of the Take Care power fall within the core executive power. Cf. post , at 24 (S OTOMAYOR , J., dissenting). I agree with the dissent that the Constitution does not justify such an expansive view. Ibid.3 Cite as: 603 U. S. ____ (2024)

B ARRETT , J., concurring in part Gen., Re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi 12–19 (July 16, 2010); see also Brief for United States 29–30; post , at 16, and n. 3 (S OTOMAYOR , J., dissenting). I express no view about the merits of that interpretation, but it shows that the thresh

old question of statutory interpretation is a nontrivial step. If the statute covers the alleged official conduct, the pros

ecution may proceed only if applying it in the circumstances poses no “ ‘dange[r] of intrusion on the authority and func

tions of the Executive Branch.’ ” Ante , at 14 (quoting Nixon

v. Fitzgerald , 457 U. S. 731, 754 (1982)). On remand, the lower courts will have to apply that standard to various al

legations involving the President’s official conduct. 2 Some of those allegations raise unsettled questions about the scope of Article II power, see ante , at 21–28, but others do not. For example, the indictment alleges that the President “asked the Arizona House Speaker to call the legislature into session to hold a hearing” about election fraud claims. App. 193. The President has no authority over state legis

latures or their leadership, so it is hard to see how prose-

——————

2 This analysis is unnecessary for allegations involving the President’s private conduct because the Constitution offers no protection from pros

ecution of acts taken in a private capacity. Ante , at 15. Sorting private from official conduct sometimes will be difficult—but not always. Take the President’s alleged attempt to organi ze alternative slates of electors. See, e

. g ., App. 208. In my view, that conduct is private and therefore not entitled to protection. See post , at 27–28 (S OTOMAYOR , J., dissenting). The Constitution vests power to appo int Presidential electors in the States. Art. II, §1, cl. 2; see also Chiafalo v. Washington , 591 U. S. 578, 588–589 (2020). And while Congress has a limited role in that process, see Art. II, §1, cls. 3–4, the President has none. In short, a President has no legal authority—and thus no official capacity—to influence how the States appoint their electors. I s ee no plausible argument for barring prosecution of that alleged conduct.4 TRUMP v. UNITED STATES

B ARRETT , J., concurring in part cuting him for crimes committed when dealing with the Ar

izona House Speaker would unconstitutionally intrude on executive power. This two-step analysis—considering first whether the statute applies and then whether its application to the par

ticular facts is constitutional—is similar to the approach that the Special Counsel presses in this Court. Brief for United States 24–30. It is also our usual approach to con

sidering the validity of statutes in situations raising a con

stitutional question. See, e

. g ., Seila Law LLC v. Consumer Financial Protection Bureau , 591 U. S. 197, 213, 229 (2020). 3 An important difference in this context is that the President is entitled to an interlocutory appeal of the trial court’s ruling. See ante , at 36. A criminal defendant in fed

eral court normally must wait until after trial to seek re

view of the trial court’s refusal to dismiss charges. See United States v. MacDonald , 435 U. S. 850, 853–854 (1978); see also 18 U. S. C. §3731. But where trial itself threatens certain constitutional interest s, we have treated the trial court’s resolution of the issue as a “final decision” for pur

poses of appellate jurisdiction. MacDonald , 435 U. S., at 854–856; see 28 U. S. C. §1291; see also §1257.

——————

3 The Court has sometimes applied an avoidance canon when inter

preting a statute that would interfere with the President’s prerogatives. See, e.g. , Franklin v. Massachusetts , 505 U. S. 788, 800–801 (1992); Pub

lic Citizen v. Dept. of Justice , 491 U. S. 440, 465–467 (1989); see also Sale

v. Haitian Centers Council, Inc. , 509 U. S. 155, 188 (19 93). The Office of Legal Counsel has advocated for a clear-statement rule if applying a stat

ute would “raise serious constitution al questions relating to the Presi

dent’s constitutional authority.” See Application of 28 U. S. C. §458 to Presidential Appointments of Federal Judges, 19 Op. OLC 350, 350–357 (1995). In my view, neither canon applies in this circumstance. Courts should instead determine th e statute’s ordinary meaning and, if it covers the alleged official acts, assess whet her prosecution would intrude on the President’s constitutional authority. See Public Citizen , 491 U. S., at 481–482 (Kennedy, J., concurring in judgment) (declining to apply the avoidance canon and concluding that the Federal Advisory Committee Act is unconstitutional as applied).5 Cite as: 603 U. S. ____ (2024)

B ARRETT , J., concurring in part The present circumstances fall squarely within our prec

edent authorizing interlocutory review. When a President moves to dismiss an indictment on Article II grounds, he “makes no challenge whatsoever to the merits of the charge against him.” Abney v. United States , 431 U. S. 651, 659 (1977) (allowing interlocutory appeal of rejection of double jeopardy defense). He instead contests whether the Consti

tution allows Congress to criminalize the alleged conduct, a question that is “collateral to, and separable from” his guilt or innocence. Ibid . Moreover, the Pr esident’s Executive Branch authority “would be significantly undermined if ap

pellate review” of the constitutional challenge “were post

poned until after conviction and sentence.” Id ., at 660; see also Helstoski v. Meanor , 442 U. S. 500, 507 (1979) (allow

ing interlocutory appeal of refusal to dismiss an indictment on Speech or Debate Clause grounds). The prospect of a trial court erroneously allowing the prosecution to proceed poses a unique danger to the “independence of the Execu

tive Branch.” Trump v. Vance , 591 U. S. 786, 800 (2020). As the Court explains, the possibility that the President will be made to defend his official conduct before a jury after he leaves office could distort his decisions while in office. Ante , at 13–14, 36. These Article II concerns do not insulate the President from prosecution. But they do justify inter

locutory review of the trial court’s final decision on the Pres

ident’s as-applied constitutional challenge. See Helstoski

, 442 U. S., at 507–508; Abney , 431 U. S., at 659–661; see also Reply Brief for United States in No. 23–624, p. 5 (agreeing that the President “has a right to an interlocutory appeal from the district court’s rejection of his immunity defense”). I understand most of the Court’s opinion to be consistent with these views. I do not join Part III–C, however, which holds that the Constitution limits the introduction of pro

tected conduct as evidence in a criminal prosecution of a President, beyond the limits afforded by executive privilege. See ante , at 30–32. I disagree with that holding; on this6 TRUMP v. UNITED STATES

B ARRETT , J., concurring in part score, I agree with the dissent. See post , at 25–27 (S OTOMAYOR , J., dissenting). The Constitution does not re

quire blinding juries to the circumstances surrounding con

duct for which Presidents can be held liable. Consider a bribery prosecution—a charge no t at issue here but one that provides a useful example. The federal bribery statute for

bids any public official to seek or accept a thing of value “for or because of any official act.” 18 U. S. C. §201(c). The Con

stitution, of course, does not authorize a President to seek or accept bribes, so the Government may prosecute him if he does so. See Art. II, §4 (listing “Bribery” as an impeach

able offense); see also Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the Presi

dent’s Nomination of Nelson A. Rockefeller To Be Vice Pres

ident Under the Twenty-Fifth Amendment to the Constitu

tion 5 (Aug. 28, 1974) (suggesting that the federal bribery statute applies to the President). Yet excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleg

ing a quid pro quo , the jury must be allowed to hear about both the quid and the quo , even if the quo , standing alone, could not be a basis for the President’s criminal liability. I appreciate the Court’s concern that allowing into evi

dence official acts for which the President cannot be held criminally liable may prejudice the jury. Ante , at 31. But the rules of evidence are equipped to handle that concern on a case-by-case basis. Most importantly, a trial court can exclude evidence of the President’s protected conduct “if its probative value is substantially outweighed by a danger of . . . unfair prejudice” or “confusing the issues.” Fed. Rule Evid. 403; see also Rule 105 (requiring the court to “restrict the evidence to its proper scope and instruct the jury ac

cordingly”). The balance is more likely to favor admitting evidence of an official act in a bribery prosecution, for in

stance, than one in which the protected conduct has little7 Cite as: 603 U. S. ____ (2024)

B ARRETT , J., concurring in part connection to the charged offense. And if the evidence comes in, the trial court can ins truct the jury to consider it only for lawful purposes. See Richardson v. Marsh , 481 U. S. 200, 206–207 (1987). I see no need to depart from that familiar and time-tested procedure here.

* * * The Constitution does not insulate Presidents from crim

inal liability for official acts. But any statute regulating the exercise of executive power is subject to a constitutional challenge. See, e

. g ., Collins v. Yellen , 594 U. S. 220, 235– 236 (2021); Zivotofsky v. Clinton , 566 U. S. 189, 192–194 (2012); Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U. S. 477, 487–488 (2010). A criminal statute is no exception. T hus, a President facing prosecu

tion may challenge the constitutionality of a criminal stat

ute as applied to official acts alleged in the indictment. If that challenge fails, however, he must stand trial._________________

_________________ 1 Cite as: 603 U. S. ____ (2024)

S OTOMAYOR , J., dissenting 

## SUPREME COURT OF THE UNITED STATES

No. 23–939

DONALD J. TRUMP, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[July 1, 2024]

J USTICE S OTOMAYOR , with whom J USTICE K AGAN and J USTICE J ACKSON join, dissenting. Today’s decision to grant former Presidents criminal im

munity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the Presi

dent, ante, at 3, 13, the Court gives former President Trump all the immunity he asked for and more. Because our Con

stitution does not shield a former President from answering for criminal and treasonous acts, I dissent.

I The indictment paints a stark portrait of a President des

perate to stay in power.In the weeks leading up to January 6, 2021, thenPresident Trump allegedly “spread lies that there had been outcome-determinative fraud in the election and that he had actually won,” App. 181, Indictment ¶2, despite being “notified repeatedly” by his closest advisers “that his claims were untrue,” id ., at 188, ¶11. When dozens of courts swiftly rejected these claims, Trump allegedly “pushed officials in certain states to ignore the popular vote; disenfranchise millions of voters; dismiss2 TRUMP v. UNITED STATES

S OTOMAYOR , J., dissenting legitimate electors; and ulti mately, cause the ascertain

ment of and voting by illegitimate electors” in his favor. Id

., at 185–186, ¶10(a). It is alleged that he went so far as to threaten one state election official with criminal prosecu

tion if the official did not “ ‘find’ 11,780 votes” Trump needed to change the election result in that state. Id ., at 202, ¶31(f ). When state officials repeatedly declined to act out

side their legal authority and alter their state election pro

cesses, Trump and his co-conspirators purportedly devel

oped a plan to disrupt and displace the legitimate election certification process by organizi ng fraudulent slates of elec

tors. See id ., at 208–209, ¶¶53–54. As the date of the certification proceeding neared, Trump allegedly also sought to “use the power and authority of the Justice Department” to bolster his knowingly false claims of election fraud by initiating “sham election crime investi

gations” and sending official letters “falsely claim[ing] that the Justice Department had identified significant concerns that may have impacted the election outcome” while “falsely present[ing] the fraudulent electors as a valid alter

native to the legitimate electors.” Id ., at 186–187, ¶10(c). When the Department refused to do as he asked, Trump turned to the Vice President. Initially, he sought to per

suade the Vice President “to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.” Id ., at 187, ¶10(d). When persuasion failed, he purportedly “attempte d to use a crowd of support

ers that he had gathered in Washington, D. C., to pressure the Vice President to fraudul ently alter the election re

sults.” Id ., at 221, ¶86. Speaking to that crowd on January 6, Trump “falsely claimed that, based on fraud, the Vice President could alter the outcome of the election results.” Id ., at 229, ¶104(a). When this crowd then “violently attacked the Capitol and halted the proceeding,” id ., at 188, ¶10(e), Trump allegedly3 Cite as: 603 U. S. ____ (2024)

S OTOMAYOR , J., dissenting delayed in taking any step to rein in the chaos he had un

leashed. Instead, in a last desperate ploy to hold onto power, he allegedly “attempted to exploit the violence and chaos at the Capitol” by pressuring lawmakers to delay the certification of the election and ultimately declare him the winner. Id ., at 233, ¶119. That is the backdrop against which this case comes to the Court.

II The Court now confronts a question it has never had to answer in the Nation’s history: Whether a former President enjoys immunity from federal criminal prosecution. The majority thinks he should, and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the Pres

ident above the law. The majority makes three moves that, in effect, com

pletely insulate Presidents from criminal liability. First, the majority creates absolute immunity for the President’s exercise of “core cons titutional powers.” Ante, at 6. This holding is unnecessary on the facts of the indictment, and the majority’s attempt to appl y it to the facts expands the concept of core powers beyond any recognizable bounds. In any event, it is quickly eclipsed by the second move, which is to create expansive immunity for all “official act[s].” Ante, at 14. Whether described as presumptive or absolute, under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless. Finally, the majority declares that evidence con

cerning acts for which the President is immune can play no role in any criminal prosecution against him. See ante, at 30–32. That holding, which will prevent the Government from using a President’s official acts to prove knowledge or intent in prosecuting private offenses, is nonsensical. Argument by argument, the majority invents immunity4 TRUMP v. UNITED STATES

S OTOMAYOR , J., dissenting through brute force. Under scrutiny, its arguments crum

ble. To start, the majority’s broad “official acts” immunity is inconsistent with text, history, and established under

standings of the President’s role. See Part III, infra . More

over, it is deeply wrong, even on its own functionalist terms. See Part IV, infra . Next, the majority’s “core” immunity is both unnecessary and misguided. See Part V, infra . Fur

thermore, the majority’s illogical evidentiary holding is un

precedented. See Part VI, infra . Finally, this majority’s project will have disastrous consequences for the Presi

dency and for our democracy. See Part VII, infra

. III The main takeaway of today’s decision is that all of a President’s official acts, define d without regard to motive or intent, are entitled to immunity that is “at least . . . pre

sumptive ,” and quite possibly “absolute.” Ante, at 14. Whenever the President wields the enormous power of his office, the majority says, the criminal law (at least pre

sumptively) cannot touch him. This official-acts immunity has “no firm grounding in cons titutional text, history, or precedent.” Dobbs v. Jackson Women’s Health Organiza

tion , 597 U. S. 215, 280 (2022). Indeed, those “standard grounds for constitutional decisionmaking,” id ., at 279, all point in the opposite direction . No matter how you look at it, the majority’s official-acts immunity is utterly indefensi

ble.

A The majority calls for a “careful assessment of the scope of Presidential power under the Constitution.” Ante, at 5. For the majority, that “careful assessment” does not involve the Constitution’s text. I would start there. The Constitution’s text contains no provision for immun

ity from criminal prosecution for former Presidents. Of course, “the silence of the Constitution on this score is not5 Cite as: 603 U. S. ____ (2024)

S OTOMAYOR , J., dissenting dispositive.” United States v. Nixon , 418 U. S. 683, 706,

n. 16 (1974). Insofar as the majority rails against the no

tion that a “ ‘specific textual basis’ ” is required, ante, at 37 (quoting Nixon v. Fitzgerald , 457 U. S. 731, 750, n. 31 (1982)), it is attacking an argument that has not been made here. The omission in the text of the Constitution is worth noting, however, for at least three reasons. First, the Framers clearly knew how to provide for im

munity from prosecution. They did provide a narrow im

munity for legislators in the Speech or Debate Clause. See Art. I, §6, cl. 1 (“Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and re

turning from the same; and for any Speech or Debate in ei

ther House, they shall not be questioned in any other Place”). They did not extend the same or similar immunity to Presidents. Second, “some state constitutions at the time of the Fram

ing specifically provided ‘express criminal immunities’ to sitting governors.” Brief for Sc holars of Constitutional Law

as Amici Curiae 4 (quoting S. Prakash, Prosecuting and Punishing Our Presidents, 100 Tex. L. Rev. 55, 69 (2021)). The Framers chose not to include similar language in the Constitution to immunize the President. If the Framers “had wanted to create some constitutional privilege to shield the President . . . from criminal indictment,” they could have done so. Memorandum from R. Rotunda to K. Starr re: Indictability of the President 18 (May 13, 1998). They did not. Third, insofar as the Constitution does speak to this ques

tion, it actually contemplates some form of criminal liability for former Presidents. The majority corr ectly rejects Trump’s argument that a former President cannot be pros

ecuted unless he has been impeached by the House and con

victed by the Senate for the same conduct. See ante, at 32–6 TRUMP v. UNITED STATES

S OTOMAYOR , J., dissenting
34; Part IV–C, infra . The majority ignores, however, that the Impeachment Judgment Clause cuts against its own po

sition. That Clause presumes the availability of criminal process as a backstop by establishing that an official im

peached and convicted by the Senate “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Pun

ishment, according to Law.” Art. I, §3, cl. 7 (emphasis added). That Clause clearly contemplates that a former President may be subject to criminal prosecution for the same conduct that resulted (or could have resulted) in an impeachment judgment—including conduct such as “Brib

ery,” Art. II, §4, which implicates official acts almost by def

inition. 1

B Aware of its lack of textual support, the majority points out that this Court has “recognized Presidential immunities and privileges ‘rooted in the constitutional tradition of the separation of powers and supported by our history.’ ” Ante

, at 10 (quoting Fitzgerald , 457 U. S., at 749). That is true, as far as it goes. Nothing in our history, however, supports the majority’s entirely novel immunity from criminal pros

ecution for official acts. The historical evidence that exists on Presidential im

munity from criminal prosecution cuts decisively against it. For instance, Alexander Hamilt on wrote that former Presi

dents would be “liable to prosecution and punishment in the ordinary course of law.” The Federalist No. 69, p. 452 (J. Harv. Lib. ed. 2009). For Hamilton, that was an important distinction between “the king of Great Britain,” who was “sacred and inviolable,” and the “President of the United States,” who “would be amenable to personal punishment

——————

1 Article II, §4, provides: “The Presid ent, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeach

ment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”7 Cite as: 603 U. S. ____ (2024)

S OTOMAYOR , J., dissenting and disgrace.” Id ., at 458. In contrast to the king, the Pres

ident should be subject to “personal responsibility” for his actions, “stand[ing] upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware,” whose State Constitutions gave them some immunity. Id ., at 452. At the Constitutional Convention, James Madison, who was aware that some state constitutions provided gover

nors immunity, proposed that the Convention “conside[r ] what privileges ought to be allowed to the Executive.” 2 Records of the Federal Convention of 1787, p. 503 (M. Far

rand ed. 1911). There is no record of any such discussion. Ibid. Delegate Charles Pinckney la ter explained that “[t]he Convention which formed the Constitution well knew” that “no subject had been more abused than privilege,” and so it “determined to . . . limi[t] privilege to what was necessary, and no more.” 3 id. , at 385. “No privilege . . . was intended for [the] Executive.” Ibid. 2 Other commentators around the time of the Founding ob

served that federal officials had no immunity from prosecu

tion, drawing no exception for the President. James Wilson recognized that federal officers who use their official powers to commit crimes “may be tried by their country; and if their criminality is established, the law will punish. A grand jury may present, a petty jury may convict, and the judges will pronounce the punishment.” 2 Debates on the Constitution 177 (J. Elliot ed. 1836). A few decades later, Justice Story evinced the same understanding. He explained that, when

——————

2 To note, as the majority does, see ante , at 39, that this Court has rec

ognized civil immunities arguably inconsistent with this view is not to say that Pinckney was wrong about what the Framers had “intended.” Indeed, Pinckney’s contemporaries sh ared the same view during the rat

ification debates. See, e.g. , 4 Debates on the Constitution 109 (J. Elliot ed. 1836) (J. Iredell) (“If the President does a single act by which the people are prejudiced, he is punishabl e himself. . . . If he commits any crime, he is punishable by the laws of his country”).8 TRUMP v. UNITED STATES

S OTOMAYOR , J., dissenting

a federal official commits a crime in office, “it is indispensa

ble, that provision should be made, that the common tribu

nals of justice should be at li berty to entertain jurisdiction of the offence, for the purpose of inflicting, the common pun

ishment applicable to unofficial offenders.” 2 Commen

taries on the Constitution of the United States §780, pp. 250–251 (1833). Without a criminal trial, he explained, “the grossest official offenders might escape without any substantial punishment, even for crimes, which would sub

ject their fellow citizens to capital punishment.” Id ., at 251. This historical evidence reinforces that, from the very be

ginning, the presumption in this Nation has always been that no man is free to flout the criminal law. The majority fails to recognize or grapple with the lack of historical evi

dence for its new immunity. With nothing on its side of the ledger, the most the majority can do is claim that the his

torical evidence is a wash. See ante, at 38–39. It claims that the Court previously has described the “relevant his

torical evidence on the question of Presidential immunity” as “ ‘fragmentary ’ ” and not worthy of consideration. Ante, at 38 (quoting Fitzgerald , 457 U. S., at 752, n. 31). Yet the Court has described only the evidence regarding “the Pres

ident’s immunity from damages liability ” as “fragmentary.” Fitzgerald , 457 U. S., at 751–752, n. 31 (emphasis added). Moreover, far from dismissing that evidence as irrelevant, the Fitzgerald Court was careful to note that “[t]he best his

torical evidence clearly support[ed]” the immunity from damages liability that it recognized, and it relied in part on that historical evidence to ov ercome the lack of any textual basis for its immunity. Id ., at 152, n. 31. The majority ig

nores this reliance. It seems history matters to this Court only when it is convenient. See, e

. g ., New York State Rifle & Pistol Assn., Inc. v. Bruen , 597 U. S. 1 (2022); Dobbs , 597 U. S. 215.9 Cite as: 603 U. S. ____ (2024)

S OTOMAYOR , J., dissenting

C Our country’s history also points to an established under

standing, shared by both Presidents and the Justice De

partment, that former Presidents are answerable to the criminal law for their official acts. Cf. Chiafalo v. Washing

ton , 591 U. S. 578, 592–593 (2020) (“ ‘Long settled and es

tablished practice’ may have ‘great weight in a proper in

terpretation of constitutional provisions’ ” (quoting The Pocket Veto Case , 279 U. S. 655, 689 (1929))). Consider Wa

tergate, for example. After the Watergate tapes revealed President Nixon’s misuse of o fficial power to obstruct the Federal Bureau of Investigation’s investigation of the Wa

tergate burglary, President Ford pardoned Nixon. Both Ford’s pardon and Nixon’s a cceptance of the pardon neces

sarily “rested on the understanding that the former Presi

dent faced potential criminal liability.” Brief for United States 15; see also Public Papers of the Presidents, Gerald R. Ford, Vol. 1, Sept. 8, 1974, p. 103 (1975) (granting former President Nixon a “full, free, and absolute pardon . . . for all offenses against the United States which he . . . has com

mitted or may have committed or taken part in during” his Presidency); R. Nixon, Statement by Former President Richard Nixon to P. Buchen, Counsel to President Ford,

p. 1 (Sept. 8, 1974) (accepting “full and absolute pardon for any charges which might be br ought against me for actions taken during the time I was President of the United States”). Subsequent special counsel and independent counsel in

vestigations have also operated on the assumption that the Government can criminally pros ecute former Presidents for their official acts, where they violate the criminal law. See,

e

. g ., 1 L. Walsh, Final Report of the Independent Counsel for Iran/Contra Matters: Investigations and Prosecutions 445 (1993) (“[B]ecause a President, and certainly a past President, is subject to prosecution . . . the conduct of Pres

-10 TRUMP v. UNITED STATES

S OTOMAYOR , J., dissenting ident Reagan in the Iran/contra matter was reviewed by In

dependent Counsel against the applicable statutes. It was concluded that [his] conduct fell well short of criminality which could be successfully prosecuted”). Indeed, Trump’s own lawyers during his second impeach

ment trial assured Senators that declining to impeach Trump for his conduct relate d to January 6 would not leave him “in any way above the law.” 2 Proceedings of the U. S. Senate in the Impeachment Trial of Donald John Trump, S. Doc. 117–2, p. 144 (2021). They insisted that a former Pres

ident “is like any other citizen and can be tried in a court of law.” Ibid. ; see also 1 id ., S. Doc. 117–3, at 339 (Trump’s impeachment counsel stating that “no former officeholder is immune” from the judicial process “for investigation, prosecution, and punishment”); id ., at 322–323 (Trump’s impeachment counsel stating: “If my colleagues on this side of the Chamber actually think that President Trump com

mitted a criminal offense . . . [a]fter he is out of office, you go and arrest him”). Now that Trump is facing criminal charges for those acts, though, the tune has changed. Being treated “like any other citizen” no longer seems so appeal

ing. In sum, the majority today endorses an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting Presiden t, the Executive Branch, or even President Trump’s lawyers, until now. Settled under

standings of the Constitution are of little use to the majority in this case, and so it ignores them.

IV A Setting aside this evidence, the majority announces that former Presidents are “absolute[ly],” or “at least . . . pre

sumptive[ly],” immune from criminal prosecution for all of their official acts. Ante, at 14 (emphasis omitted). The ma

jority purports to keep us in suspense as to whether this11 Cite as: 603 U. S. ____ (2024)

S OTOMAYOR , J., dissenting immunity is absolute or presum ptive, but it quickly gives up the game. It explains that, “[a]t a minimum, the Presi

dent must . . . be immune from prosecution for an official act unless the Government can show that applying a crim

inal prohibition to that act would pose no ‘dangers of intru

sion on the authority and functions of the Executive Branch.’ ” Ibid. (emphasis added). No dangers, none at all. It is hard to imagine a criminal prosecution for a President’s official acts that would pose no dangers of intrusion on Pres

idential authority in the majority’s eyes. Nor should that be the standard. Surely some intrusions on the Executive may be “justified by an overriding need to promote objec

tives within the constitutio nal authority of Congress.” Nixon v. Administrator of General Services , 433 U. S. 425, 443 (1977). Other intrusions may be justified by the “pri

mary constitutional duty of the Judicial Branch to do justice in criminal prosecutions.” United States v. Nixon , 418 U. S. 683, 707 (1974). According to the majority, however, any incursion on Executive power is too much. When presump

tive immunity is this conclusi ve, the majority’s indecision as to “whether [official-acts] im munity must be absolute” or whether, instead, “presumptive immunity is sufficient,” ante, at 6, hardly matters. Maybe some future opinion of this Court will decide that presumptive immunity is “sufficient,” ibid. , and replace the majority’s ironclad presumption with one that makes the difference between presumptive and absolute immunity meaningful. Today’s Court, however, has replaced a pre

sumption of equality before the law with a presumption that the President is above the law for all of his official acts. Quick on the heels of announcing this astonishingly broad official-acts immunity, the majority assures us that a former President can still be prosecuted for “unofficial acts.” Ante, at 15. Of course he can. No one has questioned the ability to prosecute a former President for unofficial (other

-12 TRUMP v. UNITED STATES

S OTOMAYOR , J., dissenting wise known as private) acts. Even Trump did not claim im

munity for such acts and, as the majority acknowledges, such an immunity would be im possible to square with Clin

ton v. Jones , 520 U. S. 681 (1997). See ante , at 15. This unremarkable proposition is no real limit on today’s deci

sion. It does not hide the majority’s embrace of the most far-reaching view of Presidential immunity on offer. In fact, the majority’s dividing line between “official” and “unofficial” conduct narrows the conduct considered “unof

ficial” almost to a nullity. It says that whenever the Presi

dent acts in a way that is “ ‘not manifestly or palpably be

yond [his] authority,’ ” he is taking official action. Ante, at 17 (quoting Blassingame v. Trump , 87 F. 4th 1, 13 (CADC 2023)). It then goes a step further: “In dividing official from unofficial conduct, courts may not inquire into the Presi

dent’s motives.” Ante, at 18. It is one thing to say that mo

tive is irrelevant to questions regarding the scope of civil liability, but it is quite another to make it irrelevant to questions regarding criminal lia bility. Under that rule, any use of official power for any pu rpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune. Under the majority’s test, if it can be called a test, the category of Presidential action that can be deemed “unofficial” is des

tined to be vanishingly small. Ultimately, the majority pays lip service to the idea that “[t]he President, charged wi th enforcing federal criminal laws, is not above them,” ante, at 13–14, but it then pro

ceeds to place former Presidents beyond the reach of the federal criminal laws for any abuse of official power.

B So how does the majority get to its rule? With text, his

tory, and established understanding all weighing against it, the majority claims just one arrow in its quiver: the balanc

ing test in Nixon v. Fitzgerald , 457 U. S. 731 (1983). Yet13 Cite as: 603 U. S. ____ (2024)

S OTOMAYOR , J., dissenting even that test cuts against it. The majority concludes that official-acts immunity “is re quired to safeguard the inde

pendence and effective functioning of the Executive Branch,” ante, at 14, by rejecting that Branch’s own protes

tations that such immunity is not at all required and would in fact be harmful, see Brief for United States 18–24, 29– 30. In doing so, it decontextualizes Fitzgerald ’s language, ignores important qualifications, and reaches a result that the Fitzgerald Court never would have countenanced. In Fitzgerald , plaintiff A. Ernest Fitzgerald sued thenformer President Nixon for money damages. He claimed that, while in office, Nixon had been involved in unlawfully firing him from his government job. See 457 U. S., at 733– 741. The question for the Court was whether a former Pres

ident had immunity from such a civil suit. The Court ex

plained that it was “settled law that the separation-ofpowers doctrine does not bar ev ery exercise of jurisdiction over the President of the United States.” Id ., at 753–754. To determine whether a particular type of suit against a President (or former Presiden t) could be heard, a court “must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch.” Id ., at 754. The Court explained that, “[w]hen judicial action is needed to serve broad public interests—as when the Court acts, not in derogation of the separation of powers, but to maintain their proper balance, or to vind icate the public interest in an ongoing criminal prosecution—the exercise of jurisdic

tion has been held warranted.” Ibid. (citations omitted). On the facts before it, the Court concluded that a “merely private suit for damages based on a President’s official acts” did not serve those interests. Ibid. The Court reasoned that the “visibility of [the President’s] office and the effect of his actions on countless people” made him an easy target for civil suits that “frequently could distract [him] from his14 TRUMP v. UNITED STATES

S OTOMAYOR , J., dissenting public duties.” Id ., at 753. The public interest in such pri

vate civil suits, the Court concluded, was comparatively weak. See id ., at 754, n. 37 (“[T]here is a lesser public in

terest in actions for civil damages than, for example, in criminal prosecutions”). Therefore, the Court held that a former President was immune from such suits. Ibid. In the context of a federal criminal prosecution of a for

mer President, however, the danger to the functioning of the Executive Branch is much reduced. Further, as every member of the Fitzgerald Court acknowledged, see Part IV– B–2, infra , the public interest in a criminal prosecution is far weightier. Applying the Fitzgerald balancing here should yield the opposite result. Instead, the majority elides any difference between civil and criminal immunity, granting Trump the same immunity from criminal prosecu

tion that Nixon enjoyed from an unlawful termination suit. That is plainly wrong.

1 The majority relies almost entirely on its view of the dan

ger of intrusion on the Executive Branch, to the exclusion of the other side of the balancing test. Its analysis rests on a questionable conception of the President as incapable of navigating the difficult decisions his job requires while staying within the bounds of the law. It also ignores the fact that he receives robust legal advice on the lawfulness of his actions. The majority says that the danger “of intrusion on the authority and functions of the Executive Branch” posed by criminally prosecuting a former President for official con

duct “is akin to, indeed greate r than, what led us to recog

nize absolute Presidential immunity from civil damages li

ability—that the President would be chilled from taking the ‘bold and unhesitating action’ required of an independent Executive.” Ante, at 13 (quoting Fitzgerald , 457 U. S., at 745). It is of course important that the President be able to15 Cite as: 603 U. S. ____ (2024)

S OTOMAYOR , J., dissenting

“‘ “deal fearlessly and impartially with” the duties of his of

fice.’ ” Ante, at 10 (quoting Fitzgerald , 457 U. S., at 752). If every action the President takes exposes him personally to vexatious private litigation, the possibility of hamstringing Presidential decisionmaking is very real. Yet there are many facets of criminal liability, which the majority dis

counts, that make it less likely to chill Presidential action than the threat of civil litigation. First, in terms of probability, the threat of criminal lia

bility is much smaller. In Fitzgerald , the threat of vexa

tious civil litigation loomed larg e. The Court observed that, given the “visibility of his office and the effect of his actions on countless people, the President would be an easily iden

tifiable target for suits for civil damages.” Id ., at 753. Alt

hough “ ‘the effect of [the President’s] actions on countless people’ could result in untold numbers of private plaintiffs suing for damages based on any number of Presidential acts” in the civil context, the risk in the criminal context is “only that a former President may face one federal prosecu

tion, in one jurisdiction, for each criminal offense allegedly committed while in office.” 2023 WL 8359833, *9 (DC, Dec. 1, 2023) (quoting Fitzgerald , 457 U. S., at 753). The major

ity’s bare assertion that the burden of exposure to federal criminal prosecution is more limiting to a President than the burden of exposure to civil suits does not make it true, and it is not persuasive. Second, federal criminal prosecutions require “robust procedural safeguards” not found in civil suits. 2023 WL 8359833, *10. The criminal justice system has layers of pro

tections that “filter out insubstantial legal claims,” whereas civil litigation lacks “analogous checks.” Cheney v. United States Dist. Court for D. C. , 542 U. S. 367, 386 (2004). To start, Justice Department po licy requires scrupulous and impartial prosecution, founded on both the facts and the law. See generally Dept. of Justice, Justice Manual §9– 27.000 (Principles of Federal Prosecution) (June 2023). The16 TRUMP v. UNITED STATES

S OTOMAYOR , J., dissenting grand jury provides an additional check on felony prosecu

tions, acting as a “buffer or referee between the Govern

ment and the people,” to ensure that the charges are wellfounded. United States v. Williams , 504 U. S. 36, 47 (1992); see also Harlow v. Fitzgerald , 457 U. S. 800, 826, n. 6 (1982) (Burger, C. J., dissenting) (“[A] criminal prosecution cannot be commenced absent careful consideration by a grand jury at the request of a prosecutor; the same check is not present with respect to the commencement of civil suits in which advocates are subject to no realistic accountability”). If the prosecution makes it past the grand jury, then the former President still has all the protections our system provides to criminal defendants. If the former President has an argument that a particular statute is unconstitu

tional as applied to him, then he can move to dismiss the charges on that ground. Indeed, a former President is likely to have legal arguments that would be unavailable to the average criminal defendant. For example, he may be able to rely on a public-authority exception from particular crim

inal laws, 3 or an advice-of-the-Attorney-General defense, see Tr. of Oral Arg. 107–108. 4

——————

3 See Nardone v. United States , 302 U. S. 379, 384 (1937) (explaining that public officers may be “impliedly excluded from [statutory] language embracing all persons” if reading the statute to include such officers “would work obvious absurdity as, for example, the application of a speed law to a policeman pursuing a criminal or the driver of a fire engine re

sponding to an alarm”); see also Memorandum from D. Barron, Acting Assistant Atty. Gen., Office of Legal Counsel, to E. Holder, Atty. Gen., Re: Applicability of Federal Criminal Laws and the Constitution to Con

templated Lethal Operations Against Shaykh Anwar al-Aulaqi 12 (July 16, 2010) (interpreting cr iminal statute prohibit ing unlawful killings “to incorporate the public auth ority justification, whic h can render lethal ac

tion carried out by a government official lawful in some circumstances”).

4 Trump did not raise those defenses in this case, and the immunity that the majority has created likely will obviate the need to raise them in future cases. Yet those defenses would have protected former Presi

dents from unwarranted criminal pr osecutions much more precisely than the blanket immunity the majority creates today.17 Cite as: 603 U. S. ____ (2024)

S OTOMAYOR , J., dissenting

If the case nonetheless make s it to trial, the Government will bear the burden of proving every element of the alleged crime beyond a reasonable doubt to a unanimous jury of the former President’s fellow citizens. See United States v. Gaudin , 515 U. S. 506, 510 (1995). If the Government man

ages to overcome even that significant hurdle, then the for

mer President can appeal his conviction, and the appellate review of his claims will be “ ‘particularly meticulous.’ ” Trump v. Vance , 591 U. S. 786, 809 (2020) (quoting Nixon

, 418 U. S., at 702). He can ultimately seek this Court’s re

view, and if past practice (inclu ding in this case) is any in

dication, he will receive it. In light of these considerable protections, the majority’s fear that “ ‘bare allegations of malice,’ ” ante, at 18 (altera

tion omitted), would expose former Presidents to trial and conviction is unfounded. Bare allegations of malice would not make it out of the starting gate. Although a private civil action may be brought based on little more than “ ‘intense feelings,’ ” ante, at 11 (quoting Fitzgerald , 457 U. S., at 752), a federal criminal prosecution is made of firmer stuff. Cer

tainly there has been, on occasion, great feelings of animos

ity between incoming and outg oing Presidents over the course of our country’s history. Yet it took allegations as grave as those at the center of this case to have the first federal criminal prosecution of a former President. That restraint is telling. Third, because of longstanding interpretations by the Ex

ecutive Branch, every sitting President has so far believed himself under the threat of criminal liability after his term in office and nevertheless boldly fulfilled the duties of his office. The majority insists that the threat of criminal sanc

tions is “more likely to distort Presidential decisionmaking than the potential payment of civil damages.” Ante, at 13. If that is right, then that distortion has been shaping Pres

idential decisionmaking since the earliest days of the Re

public. Although it makes sense to avoid “diversion of the18 TRUMP v. UNITED STATES

S OTOMAYOR , J., dissenting President’s attention during the decisionmaking process” with “needless worry,” Clinton , 520 U. S., at 694, n. 19, one wonders why requiring some small amount of his attention (or his legal advisers’ attentio n) to go towards complying with federal criminal law is such a great burden. If the President follows the law that he must “take Care” to exe

cute, Art. II, §3, he has not been rendered “ ‘unduly cau

tious,’ ” ante, at 10 (quoting Fitzgerald , 457 U. S., at 752,

n. 32). Some amount of caution is necessary, after all. It is a far greater danger if the President feels empowered to vi

olate federal criminal law, buoyed by the knowledge of fu

ture immunity. I am deeply troubled by the idea, inherent in the majority’s opinion, that our Nation loses something valuable when the President is forced to operate within the confines of federal criminal law. So what exactly is the majo rity worried about deterring when it expresses great concern for the “deterrent” effect that “the threat of trial, judgment, and imprisonment” would pose? Ante, at 13. It cannot possibly be the deter

rence of acts that are truly criminal. Nor does it make sense for the majority to wring its hands over the possibility that Presidents might stop and think carefully before taking ac

tion that borders on criminal. Instead, the majority’s main concern could be that Presidents will be deterred from tak

ing necessary and lawful action by the fear that their suc

cessors might pin them with a baseless criminal prosecu

tion—a prosecution that would almost certainly be doomed to fail, if it even made it out of the starting gate. See ante, at 40. The Court should not have so little faith in this Na

tion’s Presidents. As this Court has said before in the con

text of criminal proceedings, “ ‘[t]he chance that now and then there may be found some timid soul who will take counsel of his fears and give way to their repressive power is too remote and shadowy to shape the course of justice.’ ” Nixon , 418 U. S., at 712, n. 20 (quoting Clark v. United States , 289 U. S. 1, 16 (1933)). The concern that countless19 Cite as: 603 U. S. ____ (2024)

S OTOMAYOR , J., dissenting (and baseless) civil suits wo uld hamper the Executive may have been justified in Fitzgerald , but a well-founded federal criminal prosecution poses no comparable danger to the functioning of the Executive Branch.

2 At the same time, the public interest in a federal criminal prosecution of a former President is vastly greater than the public interest in a private individual’s civil suit. All nine Justices in Fitzgerald explicitly recognized that distinction. The five-Justice majority noted that there was a greater public interest “in criminal prosecutions” than in “actions for civil damages.” 457 U. S., at 754, n. 37. Chief Justice Burger’s concurrence accordingly emphasized that the ma

jority’s immunity was “limited to civil damages claims,” ra

ther than “ criminal prosecution.” Id ., at 759–760. The four dissenting Justices agreed that a “contention that the Pres

ident is immune from criminal pr osecution in the courts,” if ever made, would not “be credible.” Id ., at 780 (White, J., dissenting). At the very least, the Fitzgerald Court did not expect that its balancing test would lead to the same out

come in the criminal context. The public’s interest in prosecution is transparent: a fed

eral prosecutor herself acts on behalf of the United States. Even the majority acknowledges that the “[f]ederal crimi

nal laws seek to redress ‘a wr ong to the public’ as a whole, not just ‘a wrong to the individual,’ ” ante, at 13 (quoting Huntington v. Attrill , 146 U. S. 657, 668 (1892)), such that there is “a compelling ‘public interest in fair and effective law enforcement,’ ” ante, at 13 (quoting Vance , 591 U. S., at 808). Indeed, “our historic commitment to the rule of law” is “nowhere more profoundly manifest than in our view that . . . ‘guilt shall not escape or innocence suffer.’ ” Nixon , 418 U. S., at 708–709 (quoting Berger v. United States , 295 U. S. 78, 88 (1935)). The public interest in criminal prosecution is particularly20 TRUMP v. UNITED STATES

S OTOMAYOR , J., dissenting strong with regard to officials who are granted some degree of civil immunity because of thei r duties. It is in those cases where the public can see that officials exercising power un

der public trust remain on equal footing with their fellow citizens under the criminal law. See, e

. g ., O’Shea v. Little

ton , 414 U. S. 488, 503 (1974) (“[W]e have never held that the performance of the duties of judicial, legislative, or ex

ecutive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights”); Dennis v. Sparks , 449 U. S. 24, 31 (1980) (“[J]udi

cial immunity was not designed to insulate the judiciary from all aspects of public accountability. Judges are im

mune from §1983 damages actions, but they are subject to criminal prosecutions as are other citizens”); Imbler v. Pachtman , 424 U. S. 409, 428–429 (1976) (“We emphasize that the [civil] immunity of pr osecutors . . . does not leave the public powerless to deter misconduct or to punish that which occurs. This Court has never suggested that the pol

icy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law. Even judges, cloaked with absolute civil immunity for centuries, could be punished criminally”). The public interest in the federal criminal prosecution of a former President alleged to have used the powers of his office to commit crimes may be greater still. “[T]he Presi

dent . . . represent[s] all the voters in the Nation,” and his powers are given by the people under our Constitution. An

derson v. Celebrezze , 460 U. S. 780, 795 (1983). When Pres

idents use the powers of their office for personal gain or as part of a criminal scheme, every person in the country has an interest in that criminal prosecution. The majority over

looks that paramount interest entirely. Finally, the question of federal criminal immunity for a former President “involves a countervailing Article II con

sideration absent in Fitzgerald ”: recognizing such an im

-21 Cite as: 603 U. S. ____ (2024)

S OTOMAYOR , J., dissenting munity “would frustrate the Executive Branch’s enforce

ment of the criminal law.” Brief for United States 19. The President is, of course, entrusted with “ ‘supervisory and policy responsibilities of utmost discretion and sensitivity.’ ” Ante at 10 (quoting Fitzgerald , 457 U. S., at 750). One of the most important is “enforceme nt of federal law,” as “it is the President who is charged constitutionally to ‘take Care that the Laws be faithfully executed.’ ” Id. , at 750 (quoting Art. II, §3). The majority seems to think that allowing for

mer Presidents to escape a ccountability for breaking the law while disabling the current Executive from prosecuting such violations somehow respe cts the independence of the Executive. It does not. Rather, it diminishes that inde

pendence, exalting occupants of the office over the office it

self. There is a twisted irony in saying, as the majority does, that the person charged with “tak[ing] Care that the Laws be faithfully executed” can break them with impunity. In the case before us, the public interest and countervail

ing Article II interest are particularly stark. The public in

terest in this criminal prosec ution implicates both “[t]he Executive Branch’s interest in upholding Presidential elec

tions and vesting power in a new President under the Con

stitution” as well as “the vote rs’ interest in democratically selecting their President.” 91 F. 4th 1173, 1195 (CADC 2024) ( per curiam ). It also, of course, implicates Congress’s own interest in regulating conduct through the criminal law. Cf. Fitzgerald , 457 U. S., at 749, n. 27 (noting that the case did not involve “affirmative action by Congress”). Yet the majority believes that a Pr esident’s anxiety over prose

cution overrides the public’s interest in accountability and negates the interests of the other branches in carrying out their constitutionally assigned functions. It is, in fact, the majority’s position that “boil[s] down to ignoring the Con

stitution’s separation of powers.” Ante, at 40.22 TRUMP v. UNITED STATES

S OTOMAYOR , J., dissenting

C Finally, in an attempt to put some distance between its official-acts immunity and Trump’s requested immunity, the majority insists that “Trump asserts a far broader im

munity than the limited one [the majority has] recognized.” Ante , at 32. If anything, the opposite is true. The only part of Trump’s immunity argument that the majority rejects is the idea that “the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a Presi

dent’s criminal prosecution.” Ibid. That argument is obvi

ously wrong. See ante , at 32–34. Rejecting it, however, does not make the majority’s immunity narrower than Trump’s. Inherent in Trump’s Impeachment Judgment Clause argument is the idea that a former President who was impeached in the House and convicted in the Senate for crimes involving his official acts could then be prose

cuted in court for those acts. See Brief for Petitioner 22 (“The Founders thus adopted a carefully balanced approach that permits the criminal prosecution of a former President for his official acts, but only if that President is first im

peached by the House and convicted by the Senate”). By extinguishing that path to overcoming immunity, however nonsensical it might be, the majority arrives at an officialacts immunity even more expansive than the one Trump argued for. On the majority’s view (but not Trump’s), a for

mer President whose abuse of power was so egregious and so offensive even to members of his own party that he was impeached in the House and convicted in the Senate still would be entitled to “at least presumptive” criminal im

munity for those acts.

V Separate from its official-a cts immunity, the majority rec

ognizes absolute immunity for “conduct within [the Presi

dent’s] exclusive sphere of constitutional authority.” Ante, at 9. Feel free to skip over those pages of the majority’s23 Cite as: 603 U. S. ____ (2024)

S OTOMAYOR , J., dissenting opinion. With broad official-acts immunity covering the field, this ostensibly narrowe r immunity serves little pur

pose. In any event, this case simply does not turn on con

duct within the President’s “exclusive sphere of constitu

tional authority,” and the majori ty’s attempt to apply a core immunity of its own making expands the concept of “core constitutional powers,” ante, at 6, beyond any recognizable bounds. The idea of a narrow core immunity might have some in

tuitive appeal, in a case that actually presented the issue. If the President’s power is “conclusive and preclusive” on a given subject, then Congress should not be able to “ac[t ] upon the subject.” Youngstown Sheet & Tube Co. v. Sawyer

, 343 U. S. 579, 638 (1952) (Jackson, J., concurring). In his Youngstown concurrence, Justice Robert Jackson posited that the President’s “power of removal in executive agen

cies” seemed to fall within this narrow category. Ibid ., n. 4. Other decisions of this Court indicate that the pardon power also falls in this category, see United States v. Klein

,13 Wall. 128, 147 (1872) (“To the executive alone is intrusted the power of pardon; and it is granted without limit”), as does the power to recognize foreign countries, see Zivotofsky v. Kerry , 576 U. S. 1, 32 (2015) (holding that the President has “exclusive power . . . to control recognition de

terminations”). In this case, however, the question whether a former President enjoys a narrow immunity for the “exercise of his core constitutional powers,” ante, at 6, has never been at issue, and for good reason: Trump was not criminally in

dicted for taking actions that th e Constitution places in the unassailable core of Executive power. He was not charged, for example, with illegally wielding the Presidency’s pardon power or veto power or appointment power or even removal power. Instead, Trump was charged with a conspiracy to commit fraud to subvert the Pres idential election. It is true that the detailed indictment in this case alleges that Trump24 TRUMP v. UNITED STATES

S OTOMAYOR , J., dissenting threatened to remove an Acting Attorney General who would not carry out his scheme. See, e

. g ., App. 216–217, Indictment ¶¶74, 77. Yet it is equally clear that the Gov

ernment does not seek to “impose criminal liability on the [P]resident for exercising or talking about exercising the appointment and removal power.” Tr. of Oral Arg. 127. If that were the majority’s concern, it could simply have said that the Government cannot c harge a President’s threat

ened use of the removal power as an overt act in the con

spiracy. It says much more. The core immunity that the majority creates will insulate a considerably larger sphere of conduct than the narrow core of “conclusive and preclu sive” powers that the Court previously has recognized. The first indication comes when the majority includes the President’s broad duty to “ ‘take Care that the Laws be faithfully executed’ ” among the core functions for which a former President supposedly enjoys absolute immunity. Ante, at 20 (quoting Art. II, §3). That expansive view of core power will effectively insulate all sorts of noncore conduct from criminal prosecution. Were there any question, consider how the majority applies its newly minted core immunity to the allegations in this case. It concludes that “Trump is . . . absolutely immune from prosecution for” any “conduct involving his discussions with Justice Department officials.” Ante, at 21. That conception of core immunity expands the “conclusive and preclusive” category beyond recognition, foreclosing the possibility of prosecution for broad swaths of conduct. Under that view of core powers, even fabricating evidence and insisting the Department use it in a criminal case could be covered. The majority’s conception of “core ” immunity sweeps far more broadly than its logic, borrowed from Youngstown , should allow. The majority tries to assuage any concerns about its made-up core immunity by suggesting that the Government25 Cite as: 603 U. S. ____ (2024)

S OTOMAYOR , J., dissenting agrees with it. See ante, at 34. That suggestion will sur

prise the Government. To say, as the Government did, that a “small core of exclusive official acts” such as “the pardon power, the power to recognize foreign nations, the power to veto legislation, [and] the power to make appointments” cannot be regulated by Congress, see Tr. of Oral Arg. 85– 87, does not suggest that the Government agrees with im

munizing any and all conduct conceivably related to the ma

jority’s broad array of supposedly “core” powers. The Gov

ernment in fact advised this Court to “leav[e] potentially more difficult questions” about the scope of any immunity “that might arise on different facts for decision if they are ever presented.” Brief for United States 45. That would have made sense. The indictment here does not pose any threat of impermissibly criminalizing acts within the Pres

ident’s “conclusive and preclusive” authority. Perhaps for this reason, even Trump discouraged consideration of “a narrower scope of immunity,” claiming that such an im

munity “would be nearly impossible to fashion, and would certainly involve impractical line-drawing problems in every application.” Brief for Petitioner 43–44. When forced to wade into thorny separation-of-powers disputes, this Court’s usual pra ctice is to “confine the opin

ion only to the very questions necessary to decision of the case.” Dames & Moore v. Regan , 453 U. S. 654, 661 (1981). There is plenty of peril and little value in crafting a core immunity doctrine that Trump di d not seek and that rightly has no application to this case.

VI Not content simply to invent an expansive criminal im

munity for former Presidents, the majority goes a dramatic and unprecedented step further. It says that acts for which the President is immune must be redacted from the narra

tive of even wholly private cri mes committed while in office. They must play no role in proceedings regarding private26 TRUMP v. UNITED STATES

S OTOMAYOR , J., dissenting

criminal acts. See ante, at 30–32. Even though the majority’s immunity analysis purports to leave unofficial acts open to prosecution, its draconian approach to official-acts evidence deprives these prosecu

tions of any teeth. If the former President cannot be held criminally liable for his official acts, those acts should still be admissible to prove knowledge or intent in criminal pros

ecutions of unofficial acts. For instance, the majority strug

gles with classifying whether a President’s speech is in his capacity as President (official act) or as a candidate (unoffi

cial act). Imagine a President states in an official speech that he intends to stop a polit ical rival from passing legis

lation that he opposes, no matte r what it takes to do so (of

ficial act). He then hires a private hitman to murder that political rival (unofficial act). Under the majority’s rule, the murder indictment could include no allegation of the Presi

dent’s public admission of pr emeditated intent to support the mens rea of murder. That is a strange result, to say the least. 5 The majority’s extraordinary rule has no basis in law. Consider the First Amendment context. Although the First Amendment prohibits criminalizing most speech, it “does not prohibit the evidentiary use of speech,” including its use “to prove motive or intent.” Wisconsin v. Mitchell , 508 U. S. 476, 489 (1993). Evidentiary rulings and limiting instruc

tions can ensure that evidence concerning official acts is “considered only for the proper purpose for which it was ad

mitted.” Huddleston v. United States , 485 U. S. 681, 691– 692 (1988). The majority has no coherent explanation as to

——————

5 The majority suggests, in a footno te, that a “prosecutor may point to the public record to show the fact that the President performed the offi

cial act,” so long as the prosecutor does not “invite the jury to inspect” the act in any way. Ante, at 32, n. 3. Whatever that suggestion is sup

posed to accomplish, it does not salvage the majority’s nonsensical evi

dentiary rule.27 Cite as: 603 U. S. ____ (2024)

S OTOMAYOR , J., dissenting why these protections that are sufficient in every other con

text would be insufficient here. It simply asserts that it would be “untenable” and would deprive immunity of its

“ ‘intended effect.’ ” Ante, at 31 (quoting Fitzgerald , 457 U. S., at 756). The majority hazards an explanation that the use of official-acts evidence will “raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office.” Ante, at 31. That “unique risk,” however, is not a product of introducing official-acts evid ence. It is simply the risk involved in any suit against a former President, including the private-acts prosecutions the majority says it would al

low.

VII Today’s decision to grant fo rmer Presidents immunity for their official acts is deeply wr ong. As troubling as this crim

inal immunity doctrine is in theory, the majority’s applica

tion of the doctrine to the indictment in this case is perhaps even more troubling. In the hands of the majority, this new official-acts immunity operates as a one-way ratchet. First, the majority declares all of the conduct involving the Justice Department and the Vice President to be official conduct, see ante, at 19–24, yet it refuses to designate any course of conduct alleged in the indictment as private, de

spite concessions from Trump’s counsel. 6 Trump’s counsel conceded, for example, that the allegation that Trump

——————

6 The majority protests that it is “adher[ing] to time-tested practices” by “deciding what is required to dispose of this case and remanding” to lower courts to sort out the details. Ante, at 41. Yet it implicitly acknowl

edges that it reaches far beyond what any lower court considered or any party briefed by designating certain conduct official in the first instance. See ibid. (noting “the lack of factual anal ysis in the lower courts, and the lack of briefing on how to categorize the conduct alleged”). In reaching out to shield some conduct as official while refusing to recognize any con

duct as unofficial, the majority engages in judicial activism, not judicial restraint.28 TRUMP v. UNITED STATES

S OTOMAYOR , J., dissenting “turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election resu lts” “sounds private.” Tr. of Oral Arg. 29. He likewise conceded that the allegation that Trump “conspired with another private attorney who caused the filing in court of a verification signed by [Trump] that contained false allegations to support a challenge” “sounds private.” Ibid. ; see also id ., at 36–37 (Trump’s counsel explaining that it is not “disputed” that such con

duct is “unofficial”). Again, when asked about allegations that “[t]hree private actors . . . helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding, and [Trump] and a co-conspira

tor attorney directed that effort,” Trump’s counsel conceded the alleged conduct was “private.” Id. , at 29–30. Only the majority thinks that organizing fraudulent slates of elec

tors might qualify as an official act of the President, see ante, at 24–28, or at least an act so “interrelated” with other allegedly official acts that it might warrant protection, ante, at 28. If the majority’s sweepin g conception of “official acts” has any real limits, the majority is unwilling to reveal them in today’s decision. Second, the majority desig nates certain conduct immune while refusing to recognize anything as prosecutable. It shields large swaths of conduct involving the Justice De

partment with immunity, see ante, at 19–21; see also Part V, supra , but it does not give an inch in the other direction. The majority admits that the Vice President’s responsibility

“ ‘presiding over the Senate’ ” is “ ‘not an “executive branch” function,’ ” and it further admits that the President “plays no direct constitutional or stat utory role” in the counting of electoral votes. Ante, at 23–24. Yet the majority refuses to conclude that Trump lacks immunity for his alleged at

tempts to “enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudu

lently alter the election results.” App. 187, Indictment29 Cite as: 603 U. S. ____ (2024)

S OTOMAYOR , J., dissenting ¶10(d). Instead, it worries that a prosecution for this con

duct might make it harder for th e President to use the Vice President “to advance [his] agenda in Congress.” Ante, at 24. Such a prosecution, according to the majority, “may well hinder the President’s ability to perform his constitu

tional functions.” Ibid. Whether a prosecution for this con

duct warrants immunity should have been an easy ques

tion, but the majority turns it into a debatable one. Remarkably, the majority goes further and declines to deny immunity even for the allegations that Trump organized fraudulent elector slates, pressured States to subvert the legitimate election results, and exploited violence at the Capitol to influence the certification proceedings. It is not conceivable that a prosecution for these alleged efforts to overturn a Presidential election, whether labeled official or unofficial under the majority ’s test, would pose any “ ‘dan

gers of intrusion on the authority and functions of the Ex

ecutive Branch,’ ” ante, at 14, and the majority could have said as much. Instead, it perseverates on a threshold ques

tion that should be immaterial. Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new offi cial-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Kore

matsu v. United States , 323 U. S. 214, 246 (1944) (Jackson, J., dissenting). The President of the United States is the most powerful person in the country, and possibly the world. When he uses his offi cial powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders th e Navy’s Seal Team 6 to as

sassinate a political rival? Immune. Organizes a military30 TRUMP v. UNITED STATES

S OTOMAYOR , J., dissenting coup to hold onto power? Immune. Takes a bribe in ex

change for a pardon? Immune. Immune, immune, immune. Let the President violate the law, let him exploit the trap

pings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today. Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The rela

tionship between the President and the people he serves has shifted irrevocably. In ev ery use of official power, the President is now a king above the law.

* * * The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint. The Framers were not so single-minded. In the Federalist Papers, after “en

deavor[ing] to show” that th e Executive designed by the Constitution “combines . . . all the requisites to energy,” Al

exander Hamilton asked a separate, equally important question: “Does it also combine the requisites to safety, in a republican sense, a due dependen ce on the people, a due re

sponsibility?” The Federalist No. 77, p. 507 (J. Harvard Li

brary ed. 2009). The answer then was yes, based in part upon the President’s vulnerability to “prosecution in the common course of law.” Ibid. The answer after today is no. Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occu

pant of that office misuses o fficial power for personal gain, the criminal law that the rest of us must abide will not pro

vide a backstop. With fear for our democracy, I dissent._________________

_________________ 1 Cite as: 603 U. S. ____ (2024)

J ACKSON , J., dissenting 

## SUPREME COURT OF THE UNITED STATES

No. 23–939

DONALD J. TRUMP, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[July 1, 2024]

J USTICE J ACKSON , dissenting.
J USTICE S OTOMAYOR has thoroughly addressed the Court’s flawed reasoning and co nclusion as a matter of his

tory, tradition, law, and logic. I agree with every word of her powerful dissent. I write se parately to explain, as suc

cinctly as I can, the theoretic al nuts and bolts of what, ex

actly, the majority has done today to alter the paradigm of accountability for Presidents of the United States. I also address what that paradigm shift means for our Nation moving forward.

I To fully appreciate the profound change the majority has wrought, one must first acknowledge what it means to have immunity from criminal prosecution. Put simply, immun

ity is “exemption” from the duti es and liabilities imposed by law. Black’s Law Dictionary 898 (11th ed. 2019); see Hop

kins v. Clemson , 221 U. S. 636, 643 (1911) (explaining that immunity is “exemption from legal process”). In its purest form, the concept of immunity boils down to a maxim—

“ ‘[t]he King can do no wrong’ ”—a notion that was firmly “rejected at the birth of [our] Republic.” Clinton v. Jones

, 520 U. S. 681, 697, n. 24 (1997) (quoting 1 W. Blackstone, Commentaries *246 (Blackstone)); see United States v. Burr , 25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807). To say2 TRUMP v. UNITED STATES

J ACKSON , J., dissenting that someone is immune from criminal prosecution is to say that, like a King, he “is not under the coercive power of the law,” which “will not suppose him capable of committing a folly, much less a crime.” 4 Blackstone *33. Thus, being immune is not like having a defense under the law. Rather, it means that the law does not apply to the immunized per

son in the first place. Conferring immunity therefore “cre

ate[s] a privileged class free from liability for wrongs in

flicted or injuries threatened.” Hopkins , 221 U. S., at 643. It is indisputable that immunity from liability for wrong

doing is the exception rather than the rule in the American criminal justice system. That is entirely unsurprising, for the very idea of immunity stands in tension with founda

tional principles of our system of Government. It is a core tenet of our democracy that the People are the sovereign, and the Rule of Law is our first and final security. “[F]rom their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power how

ever disguised.” United States v. Mine Workers , 330 U. S. 258, 308 (1947) (Frankfurter, J., concurring in judgment). A corollary to that principle sets the terms for this case: “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with im

punity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.” United States v. Lee , 106 U. S. 196, 220 (1882). We have long lived with the collective understanding that “[d]ecency, security and liberty alike demand that govern

ment officials shall be subjected to the same rules of con

duct that are commands to the citizen,” for “[i]n a govern

ment of laws, existence of the government will be imperilled if it fails to observe the law scrupulously.” Olmstead v. United States , 277 U. S. 438, 485 (1928) (Brandeis, J., dis

senting).3 Cite as: 603 U. S. ____ (2024)

J ACKSON , J., dissenting

II A These foundational presuppositions are reflected in a pro

cedural paradigm of rules and accountability that operates in the realm of criminal law—what I would call an individ

ual accountability model. The basic contours of that model are familiar, because they manifest in every criminal case. Criminal law starts with an act of the legislature, which holds the power “to de

fine a crime, and ordain its punishment.” United States v. Wiltberger , 5 Wheat. 76, 95 (1820); accord, Ohio v. Johnson

, 467 U. S. 493, 499 (1984). Criminal statutes are laws of general applicability that express “the assent of the people’s representatives” that certain co nduct is off limits in our so

ciety. Wooden v. United States , 595 U. S. 360, 391 (2022) (G ORSUCH , J., concurring in judgment). When the Federal Government believes that someone has run afoul of a criminal statute and decides to exercise its prosecutorial discretion to pu rsue punishment for that vio

lation, it persuades a grand jury that there is probable cause to indict. U. S. Const., Amdt. 5. Then, the Govern

ment marshals evidence to prove beyond a reasonable doubt that the defendant engaged in the prohibited conduct and possessed the requisite state of mind. See United States v. Bailey , 444 U. S. 394, 402 (1980) (observing that, to hold a person criminally liable, “the concurrence of . . . ‘an evil-meaning mind [and] an evil-doing hand’” must be proved (quoting Morissette v. United States , 342 U. S. 246, 251 (1952))). For his part, the defendant “stands accused but is pre

sumed innocent until conviction upon trial or guilty plea.” Betterman v. Montana , 578 U. S. 437, 441 (2016). Notably, criminal defendants have various constitutionally pro

tected rights during the criminal-liability process, includ

ing the rights to a speedy and public trial, the right to have a jury decide guilt or innocence, the right to the assistance4 TRUMP v. UNITED STATES

J ACKSON , J., dissenting of counsel, and the right to confront the witnesses against him. Amdt. 6. The defendant also has at his disposal many means to defend himself against the criminal charge. He can, of course, seek to hold the Government to its burden of proof at trial. And even before trial, in a motion to dismiss the indictment, he might make any number of legal argu

ments; he can assert, for example, that the Government’s charging document does not give adequate notice of the charge against him or that the law he has been accused of violating is unconstitutionally vague. See Hamling v. United States , 418 U. S. 87, 117 (1974); United States v. Da

vis , 588 U. S. 445, 451 (2019). He might further claim that the law is unconstitutional as applied to hi s particular con

duct. See United States v. O’Brien , 391 U. S. 367, 376 (1968). And he might maintain that his conduct, even if proved, does not violate the law at issue. See, e

. g ., Fischer

v. United States , 603 U. S. ___, ___ (2024) (slip op., at 2). The defendant may also raise, and attempt to prove, af

firmative defenses that “excuse conduct that would other

wise be punishable.” Dixon v. United States , 548 U. S. 1, 6 (2006). Generally speaking, affirmative defenses are deter

minations (often adopted by legislation) that certain con

duct otherwise punishable by law is justified. This might be the case, for example, when the Legislature determines that, under specified circumst ances, the societal harm par

ticular conduct causes “is outweighed by the need to avoid an even greater harm.” 1 P. Robinson, Criminal Law De

fenses §24(a) (1984) (Robinson). Importantly, a defense is not an immunity, even though a defense can likewise result in a person charged with a crime avoiding liability for his criminal conduct. Consistent with our foundational norms, the individual accountability model adheres to the presumption that the law applies to all and that everyone must follow it; yet, the model makes allowances for recognized defenses. One such defense is the5 Cite as: 603 U. S. ____ (2024)

J ACKSON , J., dissenting special privilege that Government officials sometimes in

voke when carrying out their official duties. 1 All of this is to say that our Government has long func

tioned under an accountability paradigm in which no one is above the law; an accused person is innocent until proven guilty; and criminal defendants may raise defenses, both le

gal and factual, tailored to th eir particular circumstances, whether they be Government offi cials or ordinary citizens. For over two centuries, our Nation has survived with these principles intact.

B With that understanding of how our system of accounta

bility for criminal acts ordinarily functions, it becomes much easier to see that the majority’s ruling in this case breaks new and dangerous ground. Departing from the tra

ditional model of individual accountability, the majority has concocted something entire ly different: a Presidential accountability model that creates immunity—an exemption from criminal law—applicable only to the most powerful of

ficial in our Government.

1 So, how does this new Pres idential accountability model work? An initial problem is the lack of clarity regarding what this new model entails. The majority announces only its most basic contours. See ante, at 6 (asserting that “the

——————

1 See R. Perkins & R. Boyce, Criminal Law 1093 (3d ed. 1982) (“Deeds which otherwise would be criminal, su ch as taking or destroying prop

erty, taking hold of a person by force and against his will, placing him in confinement, or even taking his life, are not crimes if done with proper public authority”); see also 2 Robinson §141(a) (describing the public-au

thority defense, under which a defendan t may escape liability if he “has been specifically authorized to engage in the conduct constituting the of

fense in order to protect or further a public interest”); Brief for United States 29–30, n. 11; ante, at 16, n. 3 (S OTOMAYOR , J., dissenting) (citing Nardone v. United States , 302 U. S. 379, 384 (1937)).6 TRUMP v. UNITED STATES

J ACKSON , J., dissenting nature of Presidential power requires that a former Presi

dent have some immunity from criminal prosecution for of

ficial acts during his tenure in office”). Instead of no im

munity (the individual accountability model) or an unqualified grant of absolute immunity for “ all official acts,” Brief for Petitioner 44 (emphasis added), the majority purports to adopt something of a hybrid. 2 It holds that a former President may or may not be immune from criminal prosecution for conduct undertake n while in office, to be de

termined on a case-by-case bas is. According to the major

ity, whether a former President is immune depends on how his criminal conduct is classified, as among three possible categories. First, with respect to any criminal conduct relating to a President’s “core constitutio nal powers”—those subjects “within his ‘conclusive and preclusive’ constitutional au

thority”—the President is entitled to absolute immunity from criminal prosecution. See ante , at 6, 8. Second, ex

panding outward from this “core,” regarding all other “acts within the outer perimeter of [t he President’s] official re

sponsibility,” the President is entitled to “at least a pre

sumptive immunity from criminal prosecution.” Ante , at 14.

——————

2 Its feigned judicial humilit y notwithstanding, see ante, at 41, the ma

jority’s holding goes further— much further—than necessary to resolve this case. Petitioner’s argument in both the lower courts and this one was that a former President is categorically immune from federal crimi

nal prosecution for “all” acts within the outer perimeter of his official duties. See Opening Brief for Defendant-Appellant in No. 23–3228 (CADC, Dec. 23, 2023), p. 23; 91 F. 4th 1173, 1188–1189, 1195, 1208 (CADC 2024) ( per curiam ); Brief for Petitioner 41–47 (arguing for abso

lute immunity for “all actions within the ‘outer perimeter ’ ” of a Presi

dent’s responsibilities, and imploring the Court not to adopt a “ ‘function

based’ approach”). Thus, it would have been enough for the Court simply to reject petitioner’s categorical clai m and leave it at that. But the ma

jority sua sponte rephrased the question pres ented, and it now takes full advantage of this opportunity to devi se from whole cloth an entirely new legal framework for judicial evaluati on of potential criminal immunity for former Presidents.7 Cite as: 603 U. S. ____ (2024)

J ACKSON , J., dissenting Third, if the criminal conduct at issue comprises “unofficial acts, there is no immunity.” Ante , at 15. 3 Applying the majority’s ne w Presidential accountability model thus seems to involve bearing down on the indict

ment’s allegations and making a series of determinations about the nature of the conduct at issue. From the struc

ture of the paradigm, it appears that the first decision point is whether the alleged criminal conduct involves one of the President’s “core” powers. If so (and apparently regardless of the degree to which the conduct implicates that core power), the President is absolutely immune from criminal liability for engaging in that criminal conduct. If not, then one must proceed to consider whether the conduct qualifies as an “official” act or “unofficial” act of that President. If the crime is an official act, the President is presumptively immune from criminal prosecution and punishment. But even then, immunity still hinges on whether there is any legal or factual basis for concluding that the presumption of immunity has been rebutted. Alternatively, if the charged conduct is an unofficial act (a determination that, inci

-

——————

3 It is important to note that the majority reframes the immunity ques

tion presented here as a separation of powers concern that is compelled by Article II—as if what is being asked is whether Congress can crimi

nalize executive prerogatives. See, e.g. , ante , at 6–7; see also ante, at 1– 2 (B ARRETT , J., concurring in part). But that is not anywhere close to what is happening in this case. No one maintains that Congress has passed a law that specific ally criminalizes the President’s use of any power that the Constitution vests excl usively in the Executive, much less that the Judiciary is being conscripted to adjudicate the propriety of such a statute. To the contrary, the indictment here invokes criminal statutes of general applicability that everyone is supposed to follow, both on and off the job. So, the real question is : Can the President, too, be held ac

countable for committing crimes while he is undertaking his official du

ties? The nature of his authority under Article II (whether conclusive and preclusive, or shared with Congress, or otherwise) is entirely beside the point.8 TRUMP v. UNITED STATES

J ACKSON , J., dissenting dentally, courts must make without considering the Presi

dent’s motivations, ante, at 18), the President is not im

mune. 4

2 The majority’s multilayer ed, multifaceted threshold parsing of the character of a President’s criminal conduct differs from the individual accountability model in several crucial respects. For one thing, it makes it next to impossi

ble to know ex ante when and under what circumstances a President will be subject to accountability for his criminal acts. For every allegation, courts must run this gauntlet first—no matter how well documented or heinous the crim

inal act might be. Thus, even a hypothetical President who admits to hav

ing ordered the assassinations of his political rivals or crit

ics, see, e.g., Tr. of Oral Arg. 9, or one who indisputably in

stigates an unsuccessful coup, id ., at 41–43, has a fair shot at getting immunity under the majority’s new Presidential accountability model. That is because whether a Presi

dent’s conduct will subject him to criminal liability turns on the court’s evaluation of a variety of factors related to the character of that particular act—specifically, those charac

teristics that imbue an act with the status of “official” or “unofficial” conduct (minus motive). In the end, then, under the majority’s new paradigm, whether the President will be exempt from legal liability for murder, assault, theft, fraud,

——————

4 J USTICE B ARRETT ’s version of the Presiden tial accountability para

digm works slightly differently; she wo uld have us ask, first, “whether the relevant criminal statute reaches the President’s official conduct.” Ante, at 2. But, again, what is at issue here are statutes of general ap

plicability—they only “reach” the President’s conduct to the extent that he chooses to engage in the prohibited behavior. See n. 3, supra . J USTICE B ARRETT ’s framing, thus, sidesteps the fact that, when immunity is being considered, what is actually at issu e is whether the President is exempt from punishment if he opts to exer cise his official duties using means that violate criminal law.9 Cite as: 603 U. S. ____ (2024)

J ACKSON , J., dissenting or any other reprehensible and outlawed criminal act will turn on whether he committed t hat act in his official capac

ity, such that the answer to the immunity question will al

ways and inevitably be: It depends. Under the individual accountability paradigm, the ac

countability analysis is markedly less convoluted, and leads to a more certain outcome. None of the same complications or consequences arise, becaus e, as I have explained, there are no exemptions from the criminal law for any person, but every defendant can assert w hatever legal arguments and defenses might be applicable under governing law. Since no one is above the law, everyone can focus on what the law demands and permits, and on what the defendant did or did not do; no one has to worry about characterizing any crimi

nal conduct as official or unoffi cial in order to assess the applicability of an immunity at the outset. The majority’s new Presidential accountability model is also distinct insofar as it accepts as a basic starting premise that generally applicable criminal laws do not apply to eve

ryone in our society. In the majority’s view, while all other citizens of the United States must do their jobs and live their lives within the confines of criminal prohibitions, the President cannot be made to do so; he must sometimes be exempt from the law’s dictates depending on the character of his conduct. Indeed, the majority holds that the Presi

dent, unlike anyone else in ou r country, is comparatively free to engage in criminal acts in furtherance of his official duties. That point bears emphasizing. Immunity can issue for Presidents under the majority’s model even for unquestion

ably and intentionally egregious criminal behavior. Re

gardless of the nature or the impact of the President’s crim

inal conduct, so long as he is committing crimes “pursuant to the powers invested exclusively in him by the Constitu

tion,” ante, at 7, or as needed “to carry out his constitutional duties without undue caution,” ante, at 14, he is likely to be10 TRUMP v. UNITED STATES

J ACKSON , J., dissenting deemed immune from prosecution. 5 Ultimately, the majority’s model simply sets the criminal law to one side when it come s to crimes allegedly committed by the President. Before accountability can be sought or rendered, the Judiciary serves as a newfound special gate

keeper, charged not merely with interpreting the law but with policing whether it applies to the President at all

. Also, under the new Presidenti al accountability model, the starting presumption is that the criminal law does not ap

ply to Presidents, no matter how obviously illegal, harmful, or unacceptable a President’s official behavior might be. Regardless of all that, courts must now ensure that a for

mer President is not held accountable for any criminal con

duct he engages in while he is on duty, unless his conduct consists primarily (and perhaps solely) of unofficial acts.

3 The structure and function of the two accountability par

adigms are not the only differences—the models also assign different roles to participants in the criminal justice sys

tem, and they ultimately gene rate different relationships between the Presidency and the Rule of Law. Under the individual accountability model, duty-bound prosecutorial officers initially exercise their discretion to decide whether to seek punishme nt for alleged violations of

——————

5 To fully appreciate the oddity of making the criminal immunity de

termination turn on the character of the President’s responsibilities, con

sider what the majority says is on e of the President’ s “conclusive and preclusive” prerogatives: “ ‘[t]he President’s power to remove . . . those who wield executive power on his behalf.’ ” Ante, at 8 (quoting Seila Law LLC v. Consumer Financial Protection Bureau , 591 U. S. 197, 204 (2020)). While the President may have the authority to decide to remove the Attorney General, for example, the question here is whether the President has the option to remove th e Attorney General by, say, poison

ing him to death. Put another way, the issue here is not whether the President has exclusive removal powe r, but whether a generally applica

ble criminal law prohibiting murder can restrict how the President exer

cises that authority.11 Cite as: 603 U. S. ____ (2024)

J ACKSON , J., dissenting criminal law (a determination that is made based on nu

merous factors). And even if prosecutors decide to bring a charge, a jury of the criminal defendant’s peers ultimately determines whether that defendant (including a former President) will actually be held to account for having en

gaged in unlawful conduct, after the court has resolved any legal challenges and has instructed the jury as to the re

quirements of the law. By contrast, under the majority’s new Presidential ac

countability paradigm, what a pr osecutor or jury does may not even matter, since the courts take center stage once charges are brought against a former President, marshal

ing their resources to conduct a complex and amorphous threshold immunity evaluation. Whether a former Presi

dent will be entirely exempted from the dictates of the law (such that the roles of other participants in the criminal jus

tice process become irrelevant) requires a judicial assess

ment, in the first instance, of his criminal conduct and the circumstances under which he acted. Finally, and most importantly, recall that under the indi

vidual accountability model, an indicted former President can raise an affirmative defense just like any other criminal defendant. This means that the President remains answer

able to the law, insofar as he must show that he was justi

fied in committing a criminal act while in office under the given circumstances. In other words, while the President might indeed be privileged to commit a crime in the course of his official duties, any such privilege exists only when the People (acting either through their elected representatives or as members of a jury) determine that the former Presi

dent’s conduct was in fact justified, notwithstanding the general criminal prohibition. Under the majority’s immuni ty regime, by contrast, the President can commit crimes in the course of his job even under circumstances in which no one thinks he has any ex

-12 TRUMP v. UNITED STATES

J ACKSON , J., dissenting

cuse ; the law simply does not apply to him. Unlike a de

fendant who invokes an affirmative defense and relies on a legal determination that there was a good reason for his otherwise unlawful conduct, a former President invoking immunity relies on the premise that he can do whatever he wants, however he wants, so long as he uses his “ ‘official power’ ” in doing so. Ante, at 19. In the former paradigm, the President remains subject to law; in the latter, he is above it.

III

J USTICE S OTOMAYOR has already warned of the dire con

sequences that are likely to follow from the majority’s deci

sion in this case. Ante, at 29–30 (dissenting opinion). I have thus far endeavored merely to explain what today’s ruling amounts to on a theoretical level: the Court’s abandonment of the individual accountability model as applied to Presi

dents, and its introduction of a new Presidential accounta

bility model that authorizes the Judiciary to exempt Presi

dents from punishment under law, depending on the official or unofficial character of the criminal conduct at issue. Here, I will highlight just two observations about the re

sults that follow from this paradigm shift. First, by chang

ing the accountability paradigm in this fashion, the Court has unilaterally altered the balance of power between the three coordinate branches of our Government as it relates to the Rule of Law, aggrandizing power in the Judiciary and the Executive, to the detriment of Congress. Second, the majority’s new Presidential accountability model under

mines the constraints of the law as a deterrent for future Presidents who might otherwise abuse their power, to the detriment of us all.

A Consider the structural implications of today’s decision from the standpoint of the separation of powers. Until now,13 Cite as: 603 U. S. ____ (2024)

J ACKSON , J., dissenting Congress’s laws, passed by the representatives of the Peo

ple, bound the People and their elected officials just the same. Law, we have explained, “is the only supreme power in our system of government, and every man who by accept

ing office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.” Lee , 106 U. S., at 220. With its adoption of a paradigm that sometimes exempts the Presi

dent from the dictates of the law (when the Court says so), this Court has effectively snatched from the Legislature the authority to bind the President (or not) to Congress’s man

dates, and it has also thereby substantially augmented the power of both the Office of the Presidency and itself. As to the former, it should go without saying that the Of

fice of the Presidency, the apex of the Executive Branch, is made significantly more powerful when the constraints of the criminal law are lifted with respect to the exercise of a President’s official duties. After today’s ruling, the Presi

dent must still “take Care that the Laws be faithfully exe

cuted,” Art. II, §3; yet, when acting in his official capacity, he has no obligation to follow those same laws himself. But whatever additional po wer the majority’s new Presi

dential accountability model gives to the Presidency, it gives doubly to the Court itself, for the majority provides no meaningful guidance about how to apply this new paradigm or how to categorize a President’s conduct. For instance, its opinion lists some examples of the “core” constitutional powers with respect to which the President is now entitled to absolute immunity—a list that apparently includes the removal power, the power to recognize foreign nations, and the pardon power. Ante, at 6–9. However, the majority does not—and likely cannot—supply any useful or admin

istrable definition of the scope of that “core.” For what it’s worth, the Constitution’s text is no help either; Article II14 TRUMP v. UNITED STATES

J ACKSON , J., dissenting

does not contain a Core Powers Clause. 6 So the actual metes and bounds of the “core” Presidential powers are re

ally anyone’s guess. Nor does the majority explain how to consistently distin

guish between official and unofficial acts. Quite the oppo

site, in fact. While acknowledging that this is a critical line that courts must draw in order for its new accountability model to work properly, the majority simultaneously cau

tions that making this distinction “can be difficult”—likely a gross understatement given the recognized “breadth of the President’s ‘discretionary responsibilities’ under the Constitution and laws of the United States.” Ante, at 17. The majority likewise provides no guidance as to when, how, or why the President’s “presumptive” immunity for noncore official acts might be rebutted, saying only that ap

plying the criminal law to a President’s acts must pose “no ‘dangers of intrusion on the authority and functions of the Executive Branch.’ ” Ante, at 14 (quoting Nixon v. Fitzger

ald , 457 U. S. 731, 754 (1982)). At most, to distinguish offi cial from unofficial conduct, the majority advises asking whether the former President’s conduct was “ ‘manifestly or palpably beyond [his] author

ity.’ ” Ante, at 17 (quoting Blassingame v. Trump , 87 F. 4th 1, 13 (CADC 2023)). But that test can be illusory, as is ev

idenced by the facts alleged in this very case. With respect to the indictment’s allegations concerning petitioner’s at

tempt to assemble false slates of electors in conjunction

——————

6 Some of the powers the majority desi gnates as “core” powers are, at best, implied from indefinite constitutional language. See, e

. g ., Seila Law , 591 U. S., at 268–269 (K AGAN , J., concurring in judgment with re

spect to severability and dissenting in part) (“Nowhere does the text say anything about the President’s power to remove subordinate officials at will”); Zivotofsky v. Kerry , 576 U. S. 1, 11 (2015) (“[T]he Constitution does not use the term ‘recognition,’ eith er in Article II or elsewhere”); id ., at 63 (R OBERTS , C. J., dissenting) (calling the “asserted textual bases” for an exclusive Presidential recognition power “tenuous”).15 Cite as: 603 U. S. ____ (2024)

J ACKSON , J., dissenting with the events of January 6, 2021, for example, the major

ity admits that the “alleged co nduct cannot be neatly cate

gorized,” and that “[t]he analysis therefore . . . may prove to be challenging.” Ante, at 28–29. With that, at least, I could not agree more. This much is clear: Before today, none of these kinds of inquiries was necessary for criminal liability to be fairly as

sessed with respect to persons accused of having engaged in criminal conduct. And, frankly, none is needed now—ex

cept as relates to the President under the new paradigm the majority has crafted. Perhaps even more troubling, while Congress (the branch of our Government most accountable to the People) is the entity our Constitution tasks with deciding, as a general matter, what conduct is on or off limits, the Court has now arrogated that power unto itself when that question per

tains to the President. In essence, the Court has now im

posed its own preclearance requirement on the application of Congress’s laws to a former President alleged to have committed crimes while in office. Who will be responsible for drawing the crucial “ ‘line between [the President’s] per

sonal and official affairs’ ”? Ante, at 29. To ask the question is to know the answer. A majority of this Court, applying an indeterminate test, will pick and choose which laws ap

ply to which Presidents, by labeling his various allegedly criminal acts as “core,” “official,” or “manifestly or palpably” beyond the President’s authority. Ironically, then, while purportedly seeking to transcend politics, see ante, at 41–42, the Court today displaces the independent judgments of the political branches about the circumstances under which the criminal law should apply. Effectively, the Court elbows ou t of the way both Congress and prosecutorial authorities within the Executive Branch, making itself the indispensable player in all future at

tempts to hold former Presidents accountable to generally applicable criminal laws. “The Framers, however, did not16 TRUMP v. UNITED STATES

J ACKSON , J., dissenting make the judiciary the overseer of our government.” Youngstown Sheet & Tube Co. v. Sawyer , 343 U. S. 579, 594 (1952) (Frankfurter, J., concurring). To be sure, this Court may sometimes “have to intervene in determining where authority lies as between the democratic forces in our scheme of government.” Id ., at 597. But it has long been understood that “we should be wary and humble” when do

ing so. Ibid

. The majority displays no such caution or humility now. Instead, the Court today transfers from the political branches to itself the power to decide when the President can be held accountable. What is left in its wake is a greatly weakened Congress, which must stand idly by as the Pres

ident disregards its criminal prohibitions and uses the pow

ers of his office to push the envelope, while choosing to fol

low (or not) existing laws, as he sees fit. We also now have a greatly empowered Court, which can opt to allow Con

gress’s policy judgments criminalizing conduct to stand (or not) with respect to a former President, as a matter of its own prerogative.

B If the structural consequences of today’s paradigm shift mark a step in the wrong direction, then the practical con

sequences are a five-alarm fire that threatens to consume democratic self-governance and the normal operations of our Government. The majority shoos away this possibility. Ante, at 37 (accusing the dissents of “strik[ing] a tone of chilling doom that is wholly disproportionate to what the Court actually does today”). But J USTICE S OTOMAYOR makes this point plain, see ante, at 29–30, and I will not belabor it. Here, I will merely observe that, from a theoretical per

spective, philosophers have long considered deterrence to be a key justification for adopting and maintaining systems17 Cite as: 603 U. S. ____ (2024)

J ACKSON , J., dissenting that ensure accountability for criminal conduct. 7 For that same reason, some commentators also maintain that de

creasing the certainty of accountability for wrongful acts at least arguably reduces incentives to follow the law. 8 Under the individual accountability model, because eve

ryone is subject to the law, the potential of criminal liability operates as a constraint on the actions and decisions of eve

ryone, including the President. After today, that reality is no more. Consequently, our Nation has lost a substantial check on Presidents who would use their official powers to commit crimes with impunity while in office. So, one might ask, what remains of accountability for Presidents under law? With today’s paradigm shift, the majority leaves in place only the chance that this Court might someday determine that the criminal conduct in question was an “unofficial” act, or that the Government will somehow rebut the presumption of immunity that ap

plies to a President’s official acts, such that criminal conse

quences might attach. But with the parameters of official and unofficial conduct unknown, I think it highly unlikely that a sitting President would feel constrained by these re

mote possibilities.

——————

7 See, e

. g ., Plato, Laws 274 (B. Jowett transl. 2000) (“Not that he is punished because he did wrong, for that which is done can never be un

done, but in order that in future times, he, and those who see him cor

rected, may utterly hate injustice, or at any rate abate much of their evil

doing”); see also J. Bentham, The Rationale of Punishment 20 (1830) (“General prevention ought to be the chief end of punishment, as it is its real justification”); A. von Hirsch, Doing Justice: The Choice of Punish

ments 44 (1976) (“The threat and imposi tion of punishment is called for in order to secure compliance—not full compliance, but more compliance than there might be were there no legal penalties at all”).

8 See, e

. g ., M. Ryan, Taking Another Look at Second-Look Sentencing, 81 Brooklyn L. Rev. 149, 156, and n. 37 (2015) (“[U]ndermining the . . . certainty of punishment . . . coul d undermine the deterrence value of punishment”).18 TRUMP v. UNITED STATES

J ACKSON , J., dissenting All of this leads me to ponder why, exactly, has the ma

jority concluded that an inde terminate “core”-versus-“offi

cial”-versus-“unofficial” line-dr awing exercise is the better way to address potential criminal acts of a President? Could it be that the majority believes the obviously grave dangers of shifting from the individual accountability model to the Presidential accountability model might nev

ertheless be offset by the great benefits of doing so? Cf. J. Bentham, A Fragment on Government and an Introduction to the Principles of Morals and Legislation 3 (W. Harrison ed. 1948) (arguing that acts can be justified by the maxim that “it is the greatest happiness of the greatest number that is the measure of right and wrong” (emphasis deleted)). Some of the majority’s analysis suggests as much. As far as I can tell, the majority is mostly concerned that, without immunity, Presidents might “be chilled from taking the ‘bold and unhesitating action’ required of an independent Executive.” Ante, at 13. The Court’s opinion candidly la

ments that application of the law to Presidents might not be evenhanded, and that, as a result, Presidents might be less “ ‘vigorous’ and ‘energetic’ ” as executive officers. Ante, at 10; accord, ante, at 39. But that concern ignores (or re

jects) the foundational principles upon which the tradi

tional individual accountability paradigm is based. Worse still, promoting more vigor from Presidents in exercising their official duties—and, presumably, less deliberation— invites breathtaking risks in terms of harm to the American people that, in my view, far outweigh the benefits. This is not to say that the majority is wrong when it per

ceives that it can be cumbersome for a President to have to follow the law while carrying out his duty to enforce it. It is certainly true that “[a] scheme of government like ours no doubt at times feels the la ck of power to act with com

plete, all-embracing, swiftly moving authority.” Youngs

town , 343 U. S., at 613 (Frankfurter, J., concurring). But19 Cite as: 603 U. S. ____ (2024)

J ACKSON , J., dissenting any American who has studied history knows that “our gov

ernment was designed to have such restrictions.” Ibid. (em

phasis added). Our Constitution’s “separation of powers was adopted by the Convention of 1787, not to promote ef

ficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but . . . to save the people from autocracy.” Myers v. United States , 272 U. S. 52, 293 (1926) (Brandeis, J., dissenting). Having now cast the shadow of doubt over when—if ever—a former President will be subject to criminal liability for any criminal conduct he engages in while on duty, the majority incentivizes all future Presidents to cross the line of criminality while in office, knowing that unless they act “manifestly or palpably be yond [their] authority,” ante, at 17, they will be presumed above prosecution and punish

ment alike. But the majority also tells us not to worry, because “[l]ike everyone else, the President is subject to prosecution in his unofficial capacity.” Ante, at 40 (emphasis added). This at

tempted reassurance is cold comfort, even setting aside the fact that the Court has neglecte d to lay out a standard that reliably distinguishes between a President’s official and un

official conduct. Why? Because there is still manifest ineq

uity: Presidents alone are now free to commit crimes when they are on the job, while all other Americans must follow the law in all aspects of their lives, whether personal or pro

fessional. The official-versus-unofficial act distinction also seems both arbitrary and irrational, for it suggests that the unofficial criminal acts of a President are the only ones wor

thy of prosecution. Quite to the contrary, it is when the President commits crimes using his unparalleled official powers that the risks of abuse and autocracy will be most dire. So, the fact that, “unlike anyone else, the President is” vested with “sweeping powers and duties,” ibid. , actually underscores, rather than undermi nes, the grim stakes of setting the criminal law to the side when the President20 TRUMP v. UNITED STATES

J ACKSON , J., dissenting flexes those very powers. The vision John Adams enshrined in the Massachusetts Declaration of Rights—“ ‘a government of laws and not of men’ ”—speaks directly to this concept. Mine Workers , 330 U. S., at 307 (Frankfurter, J., concurring in judgment). Ad

ams characterized that document as an homage to the Rule of Law; it reflected both a flat “rejection in positive terms of rule by fiat” and a solemn promise that “[e]very act of gov

ernment may be challenged by an appeal to law.” Id ., at 308. Thanks to the majority, that vision and promise are likely to be fleeting in the future. From this day forward, Presidents of tomorrow will be free to exercise the Com

mander-in-Chief powers, the foreign-affairs powers, and all the vast law enforcement powers enshrined in Article II however they please—including in ways that Congress has deemed criminal and that have potentially grave conse

quences for the rights and liberties of Americans.

IV To the extent that the majority’s new accountability par

adigm allows Presidents to evade punishment for their criminal acts while in office, the seeds of absolute power for Presidents have been planted. And, without a doubt, abso

lute power corrupts absolutely. “If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.” Id ., at 312. Likewise, “[i]f the Government becomes a lawb reaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Olmstead , 277 U. S., at 485 (Brandeis, J., dissenting). I worry that, after today’s ruling, our Nation will reap what this Court has sown. Stated simply: The Court has now declared for the first time in history that the most po werful official in the United States can (under circumstances yet to be fully determined) become a law unto himself. As we enter this uncharted ter

ritory, the People, in their wisdom, will need to remain ever21 Cite as: 603 U. S. ____ (2024)

J ACKSON , J., dissenting attentive, consistently fulfilling their established role in our constitutional democracy, and thus collectively serving as the ultimate safeguard against any chaos spawned by this Court’s decision. For, like ou r democracy, our Constitution is “the creature of their will, and lives only by their will.” Cohens v. Virginia , 6 Wheat. 264, 389 (1821). For my part, I simply cannot abide the majority’s sense

less discarding of a model of accountability for criminal acts that treats every citizen of this country as being equally subject to the law—as the Rule of Law requires. That core principle has long prevented our Nation from devolving into despotism. Yet the Court now opts to let down the guard

rails of the law for one extremely powerful category of citi

zen: any future President who has the will to flout Con

gress’s established boundaries. In short, America has traditionally relied on the law to keep its Presidents in line. Starting today, however, Amer

icans must rely on the courts to determine when (if at all) the criminal laws that their representatives have enacted to promote individual and collective security will operate asspeedbumps to Presidential action or reaction. Once selfregulating, the Rule of Law now becomes the rule of judges, with courts pronouncing which crimes committed by a Pres

ident have to be let go and which can be redressed as im

permissible. So, ultimately, this Court itself will decide whether the law will be any barrier to whatever course of criminality emanates from the Oval Office in the future. The potential for great harm to American institutions and Americans themselves is obvious.

* * * The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from be

coming Kings through case-by-case application of the inde

terminate standards of their new Presidential accountabil

ity paradigm. I fear that they are wrong. But, for all our22 TRUMP v. UNITED STATES

J ACKSON , J., dissenting sakes, I hope that they are right. In the meantime, because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock consti tutional norms, I dissent.